[The Evening Bulletin (Philadelphia), May 17, 1939]

A DUBIOUS PRECEDENT

Unanimous passage by the House of Representatives of the bill barring Grover Bergdoll from this country was a rather singular performance.

Unanimity in this case cannot be taken as an indication that there is no dissent in general opinion from the bill. Its constitutionality has been doubted, and many believe that the proper way to deal with the case is to permit the deserter to return and serve the sentence imposed by court martial.

Incidentally approval of this bill was refused by the executive committee of the American Legion, the national commander of which desires to see Bergdoll punished as the military court decreed.

It is somewhat singular to have one branch of Congress endorse a proposal to prevent by legislative action a convicted deserter from taking the punishment to which he has been duly condemned and in effect quashing the court martial's sentence. The legal adviser of the State Department has expressed the opinion that Bergdoll lost his citizenship on conviction for desertion, in which case he can be dealt with according to law after his sentence has been served.

Exceptional legislation for an individual case, and one which threatens to interfere with the execution of the judgment of a court duly rendered, does not set a desirable precedent.

Mr. WEINBERGER. The Philadelphia Inquirer of Wednesday morning, May 17, 1939, well said in part:

It is one thing to disenfranchise a felon; it is another to set up an arbitrary rule to transform a fugitive or other American of doubtful worth into a man without a country. That smacks of dictatorship.

A passport was issued to Bergdoll in 1924 as a citizen by direction of Hon. Charles E. Hughes, then Secretary of State.

I have here a photostatic copy of the passport, which I will be glad to submit.

The CHAIRMAN. Very well; you may hand it to the stenographer. (The passport is as shown on facing page.)

Mr. WEINBERGER. I might state in reference to that passport two letters where written by the then Secretary of State, Hon. Charles E. Hughes, after investigation of the citizenship of Mr. Bergdoll, and the letters were given to Mr. Leighton Blood, representing the War Department, the Secretary of State, and the American Legion, to go over and bring Mr. Bergdoll back, without violence; and two letters were signed by Mr. Hughes instructing the American authorities in any country to issue the passports, which were issued in blank, and the passport that I submit here is a passport that was actually issued in Germany.

The Harness bill is clearly unconstitutional as ex post facto legislation.

The Constitution of the United States contains two provisions relating to ex post facto laws.

Article I, section 9, of the Constitution, relating to the powers of Congress, states in part:

No bill of attainder or ex post facto law shall be passed.

Article I, section 10, of the Constitution states:

No State shall

pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts

The earliest case arising under this provision of the Constitution passed upon by the United States Supreme Court was the case of Calder v. Bull (3 Dallas, 386 (1798)), where Judge Chase, talking for

the Court and discussing the history of the ex post facto prohibition in the Constitution, said:

The prohibition against their making any ex post facto law was introduced for greater caution, and very probably arose from the knowledge that the Parliament of Great Britain claimed and exercised a power to pass such laws under the denomination of bills of attainder. * * * These acts were legislative judgments, and an exercise of judicial power. Sometimes they respected the crime by declaring acts to be treason which were not treason when committed (the case of the Earl of Stafford in 1640) at other times they inflicted punishment where the party was not by law liable to do any punishment (the banishment of Lord Clarendon, 1667, 19 Car. 2, c. 10; and of Bishop Atterbury in 1723, 9 Geo. 1, c. 17) and in other cases they inflicted greater punishment than the law annexed to the offense (the Coventry Act in 1670: 22 and 23 Car. 2, c. 1).

* * *

The ground for the exercise of such legislative power was this, that the safety of the kingdom depended on the death or other punishment of the offender; as if traitors when discovered, could be so formidable, or the Government so insecure. With very few exceptions the advocates of such laws were stimulated by ambition or personal resentment and vindictive malice. To prevent such and similar acts of violence and injustice, I believe the Federal and State legislatures were prohibited from passing any bill of attainder or any ex post facto law.

Judge Story, in his learned and well-known work on the Constitution (5th ed. 1891), in discussing ex post facto laws, stated in section 1344:

The injustice and iniquity of such acts in general, constitute an irresistible argument against the existence of the power. In a free government it would be intolerable; * * * bills of this sort have been most usually passed in England in times of rebellion, or of gross subserviency to the crown, or of violent political excitements; periods in which all nations are most liable (as well the free as the enslaved) to forget their duties, and to trample upon the rights and liberties of others.

The early definition of what constitutes an ex post facto law, by the United States Supreme Court, were the cases of Calder v. Bull (3 Dallas 386 (1798) and Fletcher v. Peck (6 Cranch, 87 (1810)). In Calder v. Bull, the Court by Chase, J., said at page 390:

*

* *

I will state what laws I consider ex post facto laws within the words and intent of the prohibition. Second, every law that aggravates a crime or makes it greater than it was when committed. Third, every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed. All these and similar laws are mani

festly unjust and oppressive.

*

In Fletcher v. Peck, Chief Justice Marshall said at page 138:

An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed.

The change in punishment need not be a change in a prison sentence. This was held to be the law by the United States Supreme Court in Er parte Garland (4 Wall. 333), which held unconstitutional an act of Congress which provided that no person could be admitted as an attorney in the United States courts who does not first take an oath that he never voluntarily bore arms against the United States.

In Cummings v. Missouri (4 Wall. 277) the Supreme Court, by Mr. Justice Field, in discussing the "punishment" which is prohibited in an ex post facto law, said at page 321:

Some punishment

* consists in exile or banishment by abjuration of the realm or transportation; others in loss of liberty by perpetual or temporary imprisonment.

152055-39-2

The CHAIRMAN. Will you suspend a few moments now until the Congressman testifies?

Mr. WEINBERGER. I might say I have just a page and a half more, Mr. Congressman, so that if you will permit me to finish, you will have no interruption.

Mr. HARNESS. Finish the page and a half.

Mr. WEINBERGER. In Lindsey v. Washington (301 U. S. 397, 401), Mr. Justice Stone said:

The Constitution forbids the application of any new punitive measure to a crime already consummated to the detriment or material disadvantage of the wrongdoer.

It must be clear therefore to this committee, that under the Constitution, as interpreted by the United States Supreme Court and all writers on the Constitution, including Judges Story and Kent, that the proposed Harness bill is unconstitutional.

When this bill was first introduced into the House, I did not request a hearing because I thought that the opposition to the bill of the War Department and the Secretary of War as announced in the press, together with its apparent unconstitutionality, made its passage very unlikely.

However, when the House committee amended the bill to apply only to Grover Cleveland Bergdoll and favorably reported the amended bill and I learned of the terms of the amended bill, I requested a hearing from the House committee but was informed that the hearing was closed.

I then wrote this committee asking for a hearing if the bill should be considered by the Senate. This was done by telegram and letter dated April 28, 1939. At that time I did not know exactly when Bergdoll would return.

I was just recently informed by cable received May 19, 1939, that Bergdoll is on the S. S. Bremen which is due to arrive tomorrow. I will take him into my custody and immediately surrender him to the commanding general, Second Corps Area at Governors Island, N. Y., pursuant to letter instructions I received from the Adjutant General of the War Department. The letter reads as follows:

Mr. HARRY WEINBERGER,

WAR DEPARTMENT,

THE ADJUTANT GENERAL'S OFFICE,
Washington, April 18, 1939.

Counselor at Law, New York, N. Y. DEAR SIR: With reference to your letter of April 12, 1939, requesting information as to the proper place at which to surrender Grover Cleveland Bergdoll, you are advised that such surrender should be made to the commanding general, Second Corps Area, Governors Island, N. Y. All questions concerning the case may also be taken up with that authority after the surrender.

Very truly yours,

E. S. ADAMS,
Major General,
The Adjutant General.

The question of the passage of the Harness bill is greater than Bergdoll or any individual. It goes to the fundamentals of American democracy and liberty. It is the first possible step to establish dictatorship by ex post facto laws and bills of attainder.

It is for these reasons I ask that this Harness bill be disapproved by this committee.

The CHAIRMAN. We will now hear from Congressman Harness.