AFTER RECESS

The committee reconvened at 1.30 o'clock p. m. at the expiration of the recess.

The CHAIRMAN. The committee will be in order. Who is your next witness, Mr. Griffin?

Mr. GRIFFIN. Mr. Finerty is here, representing former Congresswoman Rankin.

Mr. FREE. Does he live here permanently? It seems to me, Mr. Chairman, it is only fair to the people who come from out of town to be heard first.

The CHAIRMAN. Well, Mr. Free, I have some ideas and things and will communicate them to you very shortly.

Mr. JOHNSON. We need to have some understanding to the time to be given to these people.

The CHAIRMAN. Will you put on your next witness, Mr. Griffin?

STATEMENT OF JOHN F. FINERTY

Mr. FINERTY. Mr. Chairman and gentlemen of the committee, it seems advisable at this time to state one's qualifications or disqualifications in appearing before the committee, and it also appears I have to go back a generation or two.

I might say that my father was a member of your House, and served in the Union Army in the Civil War. I have served in the National Guard. Unfortunately, I was unable to serve in the war in a combatant capacity. I tried to borrow money to support two dependent families and was refused, and I refused to claim the exemption in the draft, and the Government claimed it for me, and I was then in charge of the legal affairs of the Great Northern Railroad for the Government.

Subsequent to that, I was for five years assistant general counsel of the United States Railroad Administration, and in that period argued all of the cases before the Supreme Court for the Government, involving questions of rate litigation.

Mr. JOHNSON. Where do you live now?

Mr. FINERTY. I live in Washington.
Mr. JOHNSON. What is your address?

Mr. FINERTY. The Transportation Building. I just give you this background to make clear I have a patriotic background.

Mr. JOHNSON. Are you in the Federal service?

Mr. FINERTY. I am not. I resigned in 1925 and have since been engaged in private practice. I want very briefly to speak of the legal phases of this amendment.

I think sometimes opposition to a bill is influenced by the failure to understand the exact scope of it. Now, I am not suggesting that the committee does not understand the scope of this bill, but I am suggesting that some of its opponents do not, and I will, therefore, very briefly, give my views as to the scope of this bill and its inconsistency and its consistency with the decision of the Supreme Court in the Schwimmer and MacIntosh cases.

In the first place, I think there has been discussed this morning, before this committee, how the oath required of an alien who made application for citizenship is to be interpreted. The Supreme Court

has interpreted that oath, and it interpreted it as an oath that requires that citizen to bear arms in defense of his country. Now, whether it is quite right to discuss whether or not that is a correct interpretation of the oath, as Congressman Rankin pointed out to you, there is at least some doubt as to the correctness of the interpretation, due to the fact that the Chief Justice of the United States Supreme Court and three other justices disagreed with the majority. I think there is some confusion in the discussion I have heard in this committee, I think there is some confusion as to the purpose of this amendment and as to the power of Congress. I think there has been confusion as to the absolute power of Congress and the constitutional obligation, as construed by the Supreme Court, to bear arms in defense of this country in time of war, and the fact that there is no constitutional obligation requiring you to promise in advance to bear arms in time of war.

Mr. JOHNSON. Are you speaking of a citizen or an alien?

Mr. FINERTY. There is no constitutional requirement requiring that either an alien or a citizen promise, in advance, to bear arms in time of war; and if you will read the decision of the majority of the Supreme Court in the Schwimmer and MacIntosh cases you will see they made that clear. What they did in those cases was to construe the regulations of the Bureau of Naturalization as consistent with the Constitution and the absolute constitutional obligation, as the majority held, upon the citizen, in time of war, to bear arms; and they said that Congress might or might not require them to promise in advance to bear arms. They construed the present naturalization law as requiring aliens who wished to become citizens, to promise, in advance, to bear arms. But it is entirely consistent with this decision for this committee to recommend to the House, and for the House and the Senate to amend the act and provide that it shall not be a prerequisite to citizenship to bear arms in advance.

But let me point out to you that it will not in any way exonerate an alien, so admitted, from bearing arms in time of war; and let me also point out to you that the province that you have exercised for generations, and in every war of the United States, has been invaded by the Supreme Court by the Schwimmer and MacIntosh decisions because, under those decisions, you can no longer permit conscientious objectors to refuse to bear arms, as this House and this Congress have done in every war.

Mr. JOHNSON. Why not?

Mr. FINERTY. Because you can not, constitutionally, relieve any citizen from performing a constitutional duty; that can only be done by a constitutional amendment. So these decisions appear to us as the last word on the law, and deprive this very Congress of the power to exonerate even a conscientious objector in time of warsomething this Congress has done in every previous war.

So, I do not think that the last word has probably been said in either the Schwimmer or the MacIntosh cases, and will only be said when the next war comes on, if this Congress attempts to do what it has always done-that is, allow the conscientious objector, on the ground of religious belief, to refuse combatant service."

Mr. JOHNSON. You are undertaking to say now that Congress, in the future, could not make a provision for the exemption of certain of its citizens in time of war, if they asked to be exempted?

Mr. FINERTY. Yes; and I have tried to point out to you particularly that it does not only affect the right of the alien, but it affects the right of the citizen; and I do not know how thoroughly the Congress of the United States has appreciated the scope of the Schwimmer and MacIntosh decisions in that respect.

However that may be, you still do retain the power to say that an alien, entering this country, may not be required, in advance, to promise to bear arms in time of war, and that is the entire scope of this bill; namely, that you shall not ask people with conscientious objections to promise in advance, before they know whether the war is just or unjust, to say that they will, whether just or injust, bear

arms.

I do not know what respect any of you gentlemen would have for someone who promised, in advance, to fight in a war that they were convinced was unjust. I do not know if you have a recollection of the history of the governments of Europe and I therefore do not know whether you recollect that the present Premier of Great Britain, Ramsay MacDonald, was imprisoned by the British Government during the World War for refusing to fight; and I do not know whether you recollect that Lloyd George, a former Premier, was imprisoned by the British Government for the same reason during the Boer War. Not one of those men could have promised to bear arms in advance.

I am not a pacifist. I sympathize with the aspirations of the pacifist. I do not think the time has come when they are practicable.. I consider them, however, a very healthy backing for the militarists. Mr. JOHNSON. Do you mean a pacifist citizen of the United States? Mr. FINERTY. Or an alien; and a few more pacifists would not hurt this country.

Mr. JOHNSON. Are you dealing with the pacifist in another country, other than the United States of America?

Mr. FINERTY. No; I am dealing with pacifists. Either citizens, or those who may be admitted as citizens.

Mr. JOHNSON. You want a few more such men in the United States, or in Europe somewhere?

Mr. FINERTY. They may come into the United States, if you adopt this bill.

Mr. JOHNSON. You are thoroughly familiar with the conscientious objectors who were given complete discharges from the Army, and who changed their names on their passports, and went to Russia and helped take part in that uprising?

Mr. FINERTY. I am thoroughly familiar with the commander at Fort Leavenworth, and the colonel in command told me he had no more admiration for any man in the World War than the conscientious objector.

Mr. JOHNSON. What do you think about the fellows that went about as conscientious objectors in this country, and went from here to Russia and took part in their revolution?

Mr. FINERTY. I do not think they were conscientious objectors. Mr. JOHNSON. They had no conscience at all?

Mr. FINERTY. No; no more than any man who comes in this country and promised to fight in advance.

Mr. JOHNSON. That leads to the very danger of this bill. Let us see if we can not get right on one point: The proposal has in mind

the admission to citizenship of certain persons, who have been described this morning by the witnesses as of a very high type, with very firm convictions, that is to say, clear consciences-do you not think that, if this was adopted so that these could be naturalized with full respect to their consciences, we would then pave the way for having the other type described by the last witness whom he saw being naturalized, to take advantage of this situation and to go through a mock citizenship proposition?

Mr. FINERTY. May I just quote from Chief Justice Hughes, who said it was just as sensible to require anybody to swear in advance that he would bear arms, as to require him to swear in advance that that he would not violate the eighteenth amendment.

Mr. JOHNSON. Would you drop the oath of allegiance entirely? Mr. FINERTY. No; I would keep the oath of allegiance, and I would prosecute anybody who would violate it; and my personal opinion is that, if any government has to force people to fight in its defense, when it can and when it can not, that means that the majority is against it and that government will fall.

Mr. JOHNSON. You have stated it exactly, and it is well always to remember that we deal first with the citizenry as we approach war. Would it make it any easier to invite these people and pave the way for them to become citizens, and thereafter to make mischief among the citizens we already have?

Mr. FINERTY. I do not think any mischief will be made by the conscientious objectors. It simply means that they do not subscribe in advance to any war that we may undertake. There are citizens of this country of this same opinion.

Mr. JOHNSON. Fix this thing the way you would like to have it, and then begin to gnaw and pare down the restricting provisions against immigration, let them all in to this country, and then what kind of foundation would be here for a sovereign Republic like this?

Mr. FINERTY. I seem to have more faith in this Government than you do, from that. Maybe you might find a few aliens who may come in undoubtedly of this type.

Mr. JOHNSON. I will tell you that the day you begin to let people come in bearing with them a great international program, that day you begin to weaken the sovereignty of this Nation.

The CHAIRMAN. I think we have gone far enough. Will you please proceed? And no one will interrupt you.

Mr. FINERTY. Yes.

The CHAIRMAN. And when you get through, we will ask you questions.

Mr. FINERTY. I have very little more to say, except to ask this committee to clearly keep this in mind: That, if they vote for this amendment, they do not vote to exonerate every alien admitted under the provisions of the amendment from his obligation to serve this country in time of war; and all that you vote for is to admit men like Professor MacIntosh, who actually served in the British army in time of war, and is anxious to serve in the Army of the United States, if it is a just war-I ask that you vote to permit men of that type to come in, and not bar them because they will not do what should be against the conscience of anybody-promise in advance to fight in a war, whether or not it is just, that this country might be in.

The CHAIRMAN. Would not the presumption arise, in case Congress declared war-that it was a just war?

Mr. FINERTY. I quite agree with you, Mr. Chairman, that if any citizen of the United States, or any alien coming into the United States they would hesitate to set up their opinion against Congress; but in spite of that, we all know that Congress has from time to time gone wrong; even in the Mexican War, which nobody even pretends was a just war. You have an example-we have-abroad, as Professor Davis said this morning, of the very inconstancy of the European governments, that their citizens or their subjects must serve in their armies in any war they see fit to declare.

Mr. CABLE. What manner or means have we got to ever determine whether a war is just or unjust, except by our Government? Is not that the determining factor that we are bound to decide on?

Mr. FINERTY. I should say, Mr. Congressman, that one has to have considerable assurance to set his opinion up against the Government; but I also say that, if a man is really convinced that the Government is wrong, it is his duty to resist this Government; and I need only cite you to the author of the Declaration of Independence, who said the same thing.

Mr. CABLES. Is it his duty to resist, or acquiesce in the will of the majority and seek, by pacifist means, to change the view of the majority?

Mr. FINERTY. Certainly not, because if you acquiesce in the will of the majority, the minority becomes entirely ineffective as one of the individuals of this Government; and one of the things this Congress is concerned with is making more effective the will of the intelligent minority, in place of having the minority ruled by the majority. You know how the Government controls radio and can bar a speaker from the radio. I do not sympathize with the Government

Mr. CABLE. But during the terms of the emergency, do you not think that the minority ought to acquiesce in the will of the majority during the existence of an emergency?

Mr. FINERTY. I will say this: That the majority ought to enforce their will on the minority as long as they can.

Mr. CABLE. Do you think the minority will be justified in resisting the will of the majority in time of emergency?

Mr. FINERTY. I do. So long as it remains a minority, the majority has nothing to fear; and when it becomes the minority, let it obey the will of the majority.

Mr. JOHNSON. Do you think an alien has a right to decide and argue and make speeches whether a war declared by Congress is just or unjust?

Mr. FINERTY. No; I do not. I think when any alien is in this country, he is in as the guest of the Government.

The CHAIRMAN. Are we dealing with a question that deals with this bill?

Mr. FINERTY. I do want to say this: I think it is just as vicious for this Government to import aliens to propagandize for war, as it is to permit aliens, who are against war, to come here and speak against the war. I would keep them all out.

Mr. CABLE. I agree with you on that, especially the last phrase. The CHAIRMAN. We thank you very much, Mr. Finerty.