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Calendar No. 5.
^7th Congress,) SENATE. j Eeport
1st Session, j ( No. 2.

PEACE WITH GERMANY.

April 25, 1921. —Ordered to be printed.

Mr. Lodge, from the Committee on Foreign Relations, submitted the

following

2)-2^"i.^"i' REPORT.
[To accompany S. J. Res. 16.]

The Committee on Foreign Relations, to whom was referred Senate

joint resolution 16, repealing the joint resolution of April 6, 1917,
declaring a state of war to exist between the United States and Ger-
many, and for other purposes, having had the same under considera-
tion, report it with the recommendation that it do pass with the
following amendment in the nature of a substitute redrafted by Mr.
Knox.
Strike out all after the resolving clause and substitute the following
That the joint resolution of Congress passed April 6, 1917, declaring a state of war to
exist between the Imperial German Government and the Government and people of the
United States of America, and making provisions to prosecute the same, he, and the some
is hereby, repealed, and said state of war is hereby declared at an end.
That aU property of the Imperial German Government, or its successor or successors, and
of all German nationals which was, on April 6, 1917, in or has since that date come into
the possession or under control of the Government of the United States of America or of
any of its officers, agents, or employees, from any source or by any agency whatsoever, shall
be retained by the United States of America and no disposition thereof made, except as shall
have been heretofore or specifically hereafter shall be provided by Congress, until such time
as the German Government has, by treaty with the United States of America, ratification
ivhereof is to be made by and with the advice and consent of the Senate, made suitable pro-
visions for the satisfaction of all claims against the German Government of all persons,
ivheresoever domiciled, who owe permanent allegiance to the United States of America and
who have suffered, through the acts of German Government or its agents since July SI. 1914,
loss, damage, or injury to their persons or property, directly or indirectly, whether through
the oivnership of shares of stock in German, American, or other corporations, or in conse-
quence of hostilities or of any operations of war, or otherwise, and also provisions granting
to persons owing permanent allegiance to the United States of America most-favored-nation
treatment, whether the same be national or othenvise, in all matters affecting resilience, busi-
ness, profession, trade, navigation, commerce, and industrial property rights, and con-
firming to the United States of America all fines, forfeitures, penalties, and seizures im-
posed or made by the United States of Am,erica during the war, whether in respect to the
property of the German Government or German nationals, and waiving any and all pecu-
niary claims based on events which occurred at any time before the corning into force of such
treaty, any existing treaty between the United States of America and Germany to the con-
trary notwithstanding.
 .

2 PEACE WITH GERMANY.

That until by treaty or act or joint resolution of Congress it shall be determined otherwise,
the United States of Amenca, although it has not ratified the treaty of Versailles, reserves
for itself and its nationals all of the rights, powers, claims, privileges, indemyiities, repara-
tions, or advantages to which it and its nationals are or may become entitled, together
with the right to enforce the sam,e, under the terms of the armistice signed November 11,
191S, or any extensions or modifications thereof or o'theruise, or zvhich under the treaty of
Versailles have been stipulated for its benefit, or for the benefit of its nationals, with the
same force and effect as if said treaty of Versailles had been ratified by the United States of
America, and to which the United States of America is or may become entitled «s one of
the principal allied and associated powers.
That the joint resolution of Congress approved December 7 1917, declaring that "a state
,

of ivar exists between the Imperial and Royal Austro- Hungarian Government and the
Government and the people of the United States of America and making provisions to
prosecute the same, " be, and the same is hereby, repealed, and said state of war is hereby
declared at an end.
That allproperty of the Imperial and Royal Austro- Hungarian Government, or its
successor or successors, and of all nationals of the Austrian Empire or the Kingdom of
Hungary which was, on April 6, 1917 in or has since that date come into the possession
,

or under the control of the Government of the United States of America or of any of its
officers, agents, or employees from any source or by any agency whatsoever, shall be retained
by the United States of America and no disposition thereof made except as shall have been
,

heretofore or specifically hereafter shall be provided by Congress, until such tirne as the
Austrian Government has by treaty with the United States of America, ratification whereof
is to be made by and with the advice and consent of the Senate, made suitable provisions
for the satisfaction of all claims against the Austrian Government of all persons, where-
soever domiciled, ivho owe permanent allegiance to the United States of America, and
who have suffered through the acts of the Austrian Government or its agents since .July
31, 1914, loss, damage, or injury to their perso7is or property, directly or indirectly, ivhether
through the otunership of shares of stock in Austrian, American, or other corp>orations,
or in consequence of hostilities or of any operations of ivar or otherwise, and also pro-
visions granting to persons owing permanent allegiance to the United States of America
most favored nation treatment, whether the same be national or othenoise, in all matters
affecting residence, business, profession, trade, navigation, commerce, and industrial
property rights, and confirming to the United States of America all fines, forfeitures,
penalties, and seizures imposed or made by the United States of America during the war,.
whether in respect to the property of the Austrian Government or nationals of the Aus-
trian Empire, and waiving any and all pecuniary claims based on events ivhich occurred
at any time before the coming into force of such treaty, any existing treaty between the
United States of America and Austria to the contrary notwithstanding
That until by treaty or Act or joint resolution of Congress it shall be determined other-
wise, the United States of America, although it has not ratified the treaty of Saint Germain
or the treaty of Trianon, reserves for itself and its nationals all of the rights, powers, claims,
privileges, indemnities, reparations, or advantages to wMch it and its nationals are or
may become entitled, together with the right to enforce the same under the terms of the armi-
stice signed November 3, 1918, or any extensions or modifications thereof, or otherwise, or
which under the treaty of Saint Germain or the treaty of Trianon have been stipulated for
its benefits or for the benefit of its nationals with the same force and effect as if said treaty of
Saint Germain and the treaty of Trianon had been ratified by the United States of America,
and to ivhich the United States of America is or may become entitled as one of the principal
allied and associated powers.

Amend the title so as to read as follows:

"Repealing the joint resolution of April 6, 1917, declaring a state
of war to exist between the United vStates and Germany, and the
December 7, 1917, declaring a state of war to exist
joint resolution of
between the United States and the Imperial and Royal Austro-
Hungarian Government, and for other purposes."

o .^MtMAMOosinMor,

LIBRARY OF CONGRESS

MAY -21921
 —

Calendar No, 5.
erxH Congress,) SENATE. j Kept. 2,
1st Session. | i {
Part 2.

I J
\i ^^\
PEACE WITH GERMANY.
-c\^'^^
April 28 (calendar day, April 29), 1921. —Ordered to be printed.

Mr. PoMERENE, from the Committee on Foreign Relations, submitted

the following

VIEWS OF THE MINORITY.

[To accompany S. J. Res. 16.]

It is with the deepest regret that we find ourselves unable to agree

with the majority.
We concur whole-heartedly in the desire of the country for peace at
the earliest practicable moment, and we shall be glad to join with
the majority in any measure looking to that end, provided it is
formed along lines which are sound both from a domestic and an
international viewpoint.
Our belief is that the method provided in the pending resolution
will prove a disappointment. to its friends and is fraught with untold
difficulties.
Broadly speaking, the resolution is composed of three parts:

First. It repeals the joint resolutions declaring a state of war to

exist between the United States and the Imperial German Govern-
ment and the United States and the Imperial and Royal Austro-
Hungarian Government, and it recites the ''said state of war is
hereby declared at an end."
Second. The pending resolution provides also that all property of
these enemy Governments or their successors and their nationals now
in the possession or under the control of the United States or its
representatives shall be retained by the United States and no dispo-
sition thereof made except by special act of Congress
(a) Until such time as these Governments, by treaty with the
United States duly ratified, shall make suitable provision for the sat-
isfaction of all claims of all persons owing permanent allegiance to
the United States who have suffered directly or indirectly tln'ough
the enemy Governments or their agents since the several declarations
of war.
(6) And until provisions shall be made by treaty granting to all
persons owing permanent allegiance to the United States most-
lavored-nation treatment in all matters affecting residence, business,
2 PEACE WITH GERMANY.

profession, trade, navigation, commerce, and industrial property

rights.
(c) Anduntil they shall confirm to the United States of America
all fines, forfeitures, penalties, and seizures imposed or made by the
United States of America.
(d) Until they shall waive any and all pecuniary claims based
on
events which occurred at any time before the coming into force of
such treaty, any existing treaty between the United States of America
and Germany to the contrary notwithstanding.
Third. The resolution purports to reserve to the United States
and nationals all the rights, powers, claims, privileges, indemnities,
its
reparations, or advantages to which it or its nationals are or may
become entitled by the treaty of Versailles, although it has not been
ratified by the United States, under the several armistices, or their
extensions, or modifications, or which under the treaty of Versailles
have been stipulated for its benefit or the benefit of its nationals with
the same force and effect as if the said treaty of Versailles had been
ratified by the United States.
We submit that this is an attempt by act of Congress to usurp the
treaty-making power of the President and the Senate. A similar
resolution was passed by the Congress and vetoed by the President
during the last session of the Sixty-sixth Congress. The excuse given
for its enactment at that time was the failure of the President and
the Senate to agree as to the terms of the ratification of the Versailles
treaty. That same excuse does not exist now. The President and
the majority of the Senate are in party accord.
This is the first attempt in the history of our country to circumvent
the treaty-making power.
Congress is given the power to declare war, to raise and support
armies, to provide and maintain a navy, to make rules for the govern-
ment and regulation of land and naval forces, to call out the militia,
and to provide for the organizing and disciplining of the militia, and
to make all laws necessary and proper to carry into execution the
foregoing powers.
The President is the Commander in Chief of the Army and the
Navy. Under the Articles of Confederation the Congress was given
"the sole and exclusive right and power of determining on peace and
war." Not so under the Constitution. Nowhere does it vest the
peace-making power in the Congress, and we think it was purposely
omitted by the constitutional fathers. An examination of the debates
in the Constitutional Convention shows that in the early draft of the
Constitution Congress was given the power " to make war." During
the discussion it was said that the power to "make war" included
the power to "wage war," and it was thought unwise to place the
power to wage war in a body so numerous as the Congress, and so
the convention substituted the words "declare war" for the words
"make war." Later one of the delegates, Mr. Butler, rose and moved
to add the words "and peace" after the word "war," so that the
provision would read " to declare war and peace." If the Constitu-
tion had so read, then there could be no question about the power of
Congress to declare peace, but, strange to say, this amendment was
unanimously defeated, and the power conferred upon the Congress
was simply to "declare war."
 :

PEACE WITH GERMANY. 3

We do not mean to say that because the words "and peace" were
not added after the words ''to declare war" it necessarily deprives
the Congress of the power to declare peace if the Constitution either
expressly or impliedly otherwise provided, but we do claim that it
is strong evidence it was intended not to confer this power on the
Congress.
The power is conferred upon the President ''by and with the advice
and consent of the Senate to make treaties, provided two-thirds of
the Senators present agree." This power is all-comprehensive.
There are no limitations upon it or exceptions to it. It is the usual
way by which peace and commerce treaties or conventions with other
powers are made, and there is no sound reason why this method
should not be pursued now.
In order that we may ascertain the exact legal effect of this resolu-
tion let us examine the phrasing of the German war resolution. It
does not declare war against Germany. It reads: "The state of
-^^ar * * * jg hereby formally declared." In other words, there
was war between the United States and the Imperial German Gov-
ernment before it was passed. Congress only declared the state of
war to exist. When we repeal this resolution Congress does not
thereby end the war, if war exists, it only repeals the statement or
declaration that there was a state of war. And w^hen the pending
resolution recites " the state of war is hereby declared to be at an
end," if the war is not at an end, the resolution does not end it.
If it is at an end, then the declaration by the Congress to that effect
adds nothing to the state of peace, except in a very technical, legal
sense.
But the repeal of these resolutions will affect our commerce.
During the war commerce with Germany and Austro-Hungary was
suspended.
On July 1919, the War Trade Board Section of the State
14,
Department issued a license permitting communication and trade
with "persons residing in Germany" subject, however, to the fol-
lowing special limitations and exceptions, to wit
(1) The above-mentioned general license does not authorize the importation into
the United States from Germany or elsewhere of dyes, dyestuffs, potash, drugs, or
chemicals which have been produced or manufactured in (jrermany.
(2) The above-mentioned general license does not modify or affect in any respect
present restrictions against trade and communication between the United States and
Hungary or that portion of Russia under the control of the bolshevik authorities.
(3) The above-mentioned general license does not authorize trade with respect to
any property which heretofore, pursuant to the provisions of the trading with the
enemy act as amended, has been reported to the Alien Property Custodian or should
have been so reported to him, or any property which heretofore, pursuant to the pro-
visions of said act, the Alien Property Custodian has seized or has required to be
conveyed, transferred, assigned, delivered, or paid over to him.
Exports to and imports from Germany may take place under Special Export License
RAC No. 77, and General Import License PBF No. 37, as announced in W. T. B. R.
803 and W. T. B. R. 804, respectively.

These restrictions have since been modified so far as they relate

to the importation of potash from Germany, and so far as they relate
to trading with Hungary and Russia.

EFFECT OF REPEAL OF WAR RESOLUTION.

We seized property in this country and on the high seas belonging

to the German Government and her nationals, including German
 :

4 PEACE WITH GERMANY.

ships which had sought refuge in our ports from the allied fleets.
Our authority to do this was by virtue of this declaration of war
and subsequent legislation. The seizures were made by our military,
naval, and civilian forces.
Germany likewise took possession of property of the United States
and its nationals then in its territory. Its Navy seized our property
on the high seas. Such property as it did not destroy it still has
in its possession and control. By the passage of the pending resolu-
tion we are repealing the very resolutions which were the authority
for our acts and under which we took possession of this property,
and we are doing it without any consideration moving to us therefor.
True, the resolutions recite that we are going to keep the property
we thus seized, except such as may be released by act of Congress,
until a treaty shall be ratified which shall provide for the disposition
of this property and the settlement of all olaims which our Govern-
ment or our nationals may have against the German Government
growing out of this war. And then, as if to add emphasis, the resolu-
tion declares that we reserve ''all the rights, powers, claims, privileges,
indemnities, reparations, or advantages provided for in the Versailles
treaty to which we would be entitled if we had ratified it."
While considering the effect of the passing of the pending resolution,
let us keep in mind that our treaty of 1799 with Prussia, which was
revived by the treaty of 1828, expressly provides in article 23
If war should arise between the two contracting parties, the merchants of either
coimtry then residing in the other shall be allowed to remain nine months to collect
their debts and settle their affairs, and may depart freely, carrying off all their effects
without molesta*^ion or hindrance; and all women and children, scholars of every
faculty, cultivators of the earth, artisans, manufactirers, and fishermen, unarmed
and inhabiting imfortified towns, A'illages, or places, and in general all others whose
occupations are for the common subsistence and benefit of mankind, shall be allowed
to continxie their respective employments, and shall not be molested in their persons
nor shall their houses or goods be burnt or otherwise destroyed, nor their fields wasted
by th3 armed force of the enemy, into whose power by the events of war they may
happen to fall: biit if anything is necessary to be taken from them for the use of such
armed force, the same shall be paid for at a reasonable price.
And this last treaty significantly and formally declares it to be
''equally beneficial to both countries" and ''applicable in time of
peace as well as in time of war."
We submit that the enactment of the pending resolution will result:
(1) In removing unconditionally all war restrictions with respect to
our trade v»^ith Germany and Austria-Hungary, and will restore all
commerce as heretofore. Of course, this is an end to be desired by
Americans as well as Germans, but it will prove of infinitely more
importance to Germany to get into our markets than it will for
America to get into German markets. In our judgment, while we
desire commercial relations, we should first determine the terms and
conditions upon which we shall renew them before we let down the
bars unconditionally. We
owe this duty to the American people.
(2) In consideration for this unconditional repeal of the war
resolutions we receive no compensating return. True, the resolution
recites that we shall retain the property already seized hy our forces,
including ships in our ports, until all claims of indemnity by our
Government or our nationals are settled by treaty, to the same
extent that we could if we had ratified the Versailles treaty. But
we assert that these reservations add nothinsr to our title or to our
 PEACE WITH GERMANY. 5

•security. They do nothing more than serve notice upon the German
Government as to what our position will be with respect to this
property. Let it be borne in mind that the Versailles treaty is only
binding upon those powers which have exchanged ratification, and
unless we do ratify that treaty, Germany is not bound thereby to
satisfy the claims of our Government or our nationals.
(3) The repeal of the war resolution will only serve to strengthen
Germany's claim that the seizure by our forces of the property of
Germany and of German nationals, including the ships in our ports,
w^as unlawful and in violation of our treaties of 1799 and 1828 with
Prussia, to which reference has been made.
(4) By the repeal of the resolution we leave Germany in possession
of all the property belonging to the United States or to our nationals
which was seized and confiscated by it on German territory or upon
the high seas, without any obligation on its part to give compensation
therefor.
(5) We can not by this legislation either persuade or compel
Germany to reciprocate by similar legislation, and the only way
known to the law to settle these questions between Germany and
ourselves is either by treaty negotiations or by force of arms.
(6) Germany has shown no disposition to make settlement with
any of our allies, or with ourselves, on an equitable basis for the dam-
ages it has wTought. Why, then, should we voluntarily repeal this
—
resolution the thing Germany desires above everything else and —
leave all other matters to be hereafter adjusted according to Ger-
many's own sweet will? Now the United States Government has
the advantage. The majority, as evidenced by their report, if this
legislation is passed, will voluntarily surrender it and give it to
Germany.
(7)We conclude, therefore, that if the administration is not willing
to ratify the Versailles treaty with such reservations and upon such
terms and conditions as will secure to the United States and its
nationals all of the rights and privileges which are provided for them
under the Versailles treaty, then we suggest that before this resolution
is passed we request the President, through the State Department, to
enter into communication with the German Government, and nego-
tiate a treaty by which it will agree to adjust all differences fairly to
it, ourselves, and our associates and allies, along the lines set out in
the pending resolution. If Germany will not enter into a treaty along
these lines while the resolution declaring a state of war is in effect,
it will not do so when the resolution is repealed. If Germany does
enter into such a treaty, we believe it will do so more expeditiously
with this war resolution on our statute books than if it is repealed.
Nothing can be lost by this course. Much can be gained. In any
event we will have the advantage thereby in our negotiations.
These same observations in substance apply to the repeal of the
resolution declaring^ a state of war with the Imperial and Royal
Austro-Hungarian Government.
G. M. Hitchcock.
John Sharp Williams.
Claude A. Swanson.
Atlee Pomerene.

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