Mr. ALLEN. Did you come here just because of yourself or did someone request you to come here?

Mr. EAGLE. The committee had asked me to come.

Mr. ALLEN. Which committee?

Mr. EAGLE. This committee, sir.

Mr. ALLEN. This committee requested you to come here?

Mr. EAGLE. Yes, sir.

Mr. ALLEN. The chairman of this committee?

Chairman WOODRUM. I invited him to come. I had read one of Mr. Eagle's articles that I thought was a contribution to the subject, and I invited him to come.

Mr. VINSON. And I, as a member, am glad you came, Mr. Eagle. I endorse your views 100 percent.

Mr. EAGLE. Thank you.

Chairman WOODRUM. Thank you very much. The next witness is Dr. Theodore Paullin.

I would like to say for the record that one of the questions arising in the consideration of any adoption of a system of universal military training is the question of the possible constitutionality or unconstitutionality of such a procedure. It has been discussed from time to time, and, of course, it is of interest to this committee and will be of interest to the legislative committee if and when they should get to a point of going into that question. One of the authorities in this country on the subject is Dr. Harrop A. Freeman, who is now on the faculty at William and Mary College, Williamsburg, Va. We had given Dr. Freeman time before this committee, but because of illness he could not come and Dr. Paullin has very kindly consented to read the statement which Dr. Freeman had prepared. We will have after Dr. Paullin Mr. Archibald G. Thacher, of New York, who has also worked on this subject. So, the committee will be fortunate in having both views of the subject presented for the record. We will be glad to have you proceed, Dr. Paullin.

STATEMENT OF THEODORE PAULLIN, ASSISTANT PROFESSOR OF HISTORY, SWARTHMORE COLLEGE, SWARTHMORE, PA.

Mr. PAULLIN. Mr. Chairman, members of the committee. I want to express my appreciation to you for allowing me to substitute for Mr. Freeman today. I will read this statement just as Mr. Freeman wrote it. I have to tell the committee that I am a historian rather than a lawyer, and I fear I won't be very helpful in answering any questions that might arise in your minds but you have a copy of the full article, I think, to which you can refer if you want the full state

ment.

(Statement of Harrop A. Freeman, professor of law, College of William and Mary, Williamsburg, Va.-read by Mr. Paullin as follows:)

I am Harrop A. Freeman. I have been since 1930 a member of the New York State bar, and since 1942 have been professor of law at the College of William and Mary in Virginia.

It is noted from Chairman Woodrum's communication that these hearings do not involve any specific bill but seek to formulate an over-all postwar military policy. For several years I have been in

terested in and conducted research with regard to the type of Military Establishment authorized by the United States Constitution. It is believed that my article in the December 1944 Virginia Law Review, summarized in the April 1945 American Bar Association Journal, is the only complete study available.

Because of my primary interest in constitutional and international law, I wish to address myself to two questions: (1) What system or systems of peacetime military training are authorized by our Constitution? (2) What relation has American conscription to plans for world government, such as are being shaped at San Francisco?

We can immediately pass over the arguments that conscription will improve health, education, character, democracy, and the national economy. I think we will all admit that conscription is no patent cure-all for our ills. Concerning these arguments and that of military necessity, I am by no stretch of the imagination an authority. Nevertheless, I have for some time directed research on political and governmental issues, and have particpated in collecting and correlating some of the material put forward by the Army and by experts in these fields. I am filing with this statement a booklet, in the preparation of which I participated and whose results I therefore believe to be reasonably accurate. The Sourcebook on Peacetime Conscription outlines proposals, collates official statements concerning military necessity with other statements and statistics, collects statitical and source material on conscription's relation to health, character, crime, democracy, education, the national economy, and world peace. But when we are considering a policy which is to be enacted into law, then to you and to me who are duty bound to uphold the Constitution, the more important single problem is that such law be constitutionally sound. In summary, the conclusion at which I arrive in the Virginia Law Review article to which I have already referred is this:

The Federal Government cannot conscript the general manpower of the country for training in peacetime (except possibly in immediate anticipation of approaching war).

The adult manpower constitutes the militia, a State organization which exists without conscription. These men can only be trained by the States as militia; that is, at home, "civilians primarily (shopkeepers, doctors, laborers), soldiers on occasion"-to use Supreme Court language.

It was intended that the Federal Government should maintain only a small standing army of volunteers in peacetime.

In war, when attacked, the Federal Government may call by draft any or all the State militia (general manpower) into the national service until the attack is repulsed. The Federal Government may use these men abroad, for "repel" does not stop at our boundaries. And similarly the "attack" may be on our mainland or a possession. I have submitted this Virginia Law Review article to many of the professors of constitutional law in the law schools. A few have questioned the certainty of the Supreme Court declaring a peacetime conscription law unconstitutional. Those men, like Professor Dodd of Harvard, rely more on the background and mental processes of the present incumbent judges and on the sociological implications of our day, than on the historical intendment of the original provisions which

marks my approach. In the realm of interstate commerce, the police power, delegation of legislative power, and similar concepts which our forefathers also saw as shifting or growing, I am in complete agreement with Professor Dodd's approach. But in areas like treason and the relation of the military to the civil branches of government, where our forefathers were primarily establishing a government of protest against abuses which they had enumerated in the Declaration of Independence, the approach must be chiefly historical. No person who has examined the article has questioned the historical accuracy of the material set forth therein to show that the Constitutional Con- * vention very clearly and intentionally denied to Congress the power to conscript men in peacetime.

Before I review, very briefly, the material set forth in the Virginia Law Review article, copies of which I am filing with you, I should call attention to the fact that the United States Supreme Court has applied the historical approach in the recent case of Cramer v. United States (65 Sup. Ct. 918), the first treason case to be reviewed by the Supreme Court, and growing out of the Nazi Sabateur case Ex Parte Quirin. Here one might surely expect to have the argument of an "expanding concept of power based on present-day conditions" most ardently advocated. Is not the danger of adherence to this country's enemies, adopting the Nazi philosophy, associating with sabateurs so great that a power must be found in the Constitution to deal with the danger? Yet, in a long opinion the Court reversed a conviction for treason; every bit of the Court's treatment of the law applicable is on a basis of the historical intention of the framers of the Constitution. The judges begin their reasoning with the words: "When our forefathers took up the task of forming an independent political organization for New World society." The opinion is liberally sprinkled with statements like: "The Convention numbered among its members men familiar with government in the Old World, and they looked back upon a long history of use and abuse." "We can read this statute only as our forebears read it" and "historical materials aid interpretation chiefly in that they show two kinds of dangers against which the framers were concerned to guard." There are in the opinion 10 pages of legal research with multiple footnotes completely historical. The remainder of the opinion is given to analyzing the facts in the light of the constitutional meaning derived from this historical study. I recommend that study to you as parallel to my study in the field of military power. For both recognize the very definite limits placed on Federal authority lest its abuse infringe individual rights.

The pertinent material in the Virginia Law Review article proceeds somewhat like this:

Extreme advocates of military power have gone so far as to claim. that the Constitution is inoperative in wartime. Their opponents, on the other hand, have contended that our Government has no legal power of conscription for any purpose, at any time. Truth lies near the median. Both the States and the Nation do have war powers, yet these are designated and limited by the Constitution.

It is fundamental to our plan of government that the civil is supreme over the military. This is forcefully stated in the Declaration of Independence, the constitutional debates, decisions by the courts, and opinions of law writers like Roscoe Pound of Harvard.

A constitutionally sound military program cannot stand for its support on one phrase or one clause or one power in the Constitution. It must be formulated in the light of the entire document, reconciling and integrating the various powers and limitations therein contained. The constitutional provisions relating to the military are fairly well known; but are set forth here for easy reference:

Article I, section 8:

The Congress shall have Power

To declare War *

** To raise

and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To make Rules for the Government and Regulation of the land and naval forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress insurrection and repel invasion;

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

* * *

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers

Article II, section 2:

*

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several states, when called into the actual Service of the United States;

Although attempts have been made to spell out a Federal power to "provide for the common defense," there is no such power conferred by the Constitution. These words are employed only in two places, in the preamble (which never creates power) and as a limitation upon the taxing and spending power of the United States in article I, section 8.

One of the grievances set forth in our Declaration of Independence as justification for overthrowing government was: "He has kept among us, in times of peace, Standing Armies In England there had long been opposition to standing armies. They were condemned in the Petition of Right in 1628, and in the Bill of Rights; they were branded as dangerous and contrary to the theory of government by Blackstone. Parliament had developed the militia system and disbanded in peacetime the whole King's army.

We colonists inherited and carried on this opposition. The Continental Army was disbanded by Congress within 2 months of the end of the war. In the Constitutional Convention no voice asked for a large standing army; some demanded a small volunteer army or wellorganized militia. Attempts were made to limit the Army to 2,000. In the Convention the first voice heard on the military power, was "against standing armies in time of peace *. The people were jealous on this head." The last voice asked "that the liberties of the people may be better secured against the danger of standing armies in time of peace." Nearly every State in ratifying the Constitution made extra sure of the constitutional plan by recording its opposition to standing armies.

* *

And our forefathers did more than talk and draw up rules. They adopted a State militia system intended to render standing armies unnecessary, and a system which would be subject as little as possible to conversion into a Federal army. The first draft of the Constitu

tion authorized a "militia of the United States." But the debates following showed that the people were unwilling to create a Federal militia; that they conceived that able-bodied men owed a duty of military service to the several States; therefore the above provision was stricken out and the President was made Commander in Chief of "the Militia of the several States."

The Federal Government was finally given only the power of providing for the "organizing, arming, and disciplining" of the State militia; the States were to appoint the officers and do the training. Mr. King, one of the drafters of the final provision, explained the Federal power to his fellow delegates at the Constitutional Convention before they would ratify it

by organizing, the committee meant, proportioning the officers and men-by arming, specifying the kind size, and calibre of arms-and by disciplining, prescribing the manual exercise, evolutions, etc.

The original draft of the Constitution also authorized Congress to "make war." This was changed to "declare war" for the express purpose of "clogging rather than facilitating war; but for facilitating peace." President Washington, one of the strong advocates of almost unlimited Federal war powers, was the first to recognize that his plan had been rejected and that limitations had been imposed. In his letter transmitting the proposed Constitution to Congress, he said:

The friends of our country have long seen and desired that the power of making war, peace, and treaties; that of levying money and regulating comfully and effectually vested in the general government of the Union. But the impropriety of delegating such extensive trust to one body of men is evident. Thence results the necessity of a different organization.

We can now begin I think, to see the pattern intended by our forefathers. They were unwilling to limit the Army to a specific number-2,000-but they did want a small army. Therefore they gave Congress the power of the purse which they deemed a sufficient control-no one Congress could launch us on a greatly expanded program, since appropriations every 2 years were necessary. The framers of the Constitution were unwilling to give the Federal Government control of the general manpower-militia-in time of peace, but they would give it the right to call forth the militia in wartime. It was their opinion that a large standing army or force which could be called for other purposes than to repel invasion would invite attack. This policy, of avoiding aggressive war or excuse for attack, was sound then and is sound now.

These principles were well understood by the States and the Federal Government, and early both acted in accordance. The States began by making able-bodied citizens, with certain exceptions, a part of the militia of each State. The Federal Government enacted regulations as to arms, proportion of officers, et cetera. In the early period it was agreed that the States had major control of their militia, including the right to grant exemptions. The first Federal statutes referred to the "militia of the respective States"; the first empowerment for the President to call forth the militia referred to "such number of the militia of the State or States."

Not until 1863 was it suggested that there was a duy on the part of individuals to render Federal militia service. In fact, the law of March 3, 1863, was in such form that it could be considered a calling