The Secretary of State to President Wilson

My Dear Mr. President: Referring to my letters of August 14, and 20, with reference to the treatment to be accorded to declarants having treaties of exemption, and those having no treaties of exemption from military service, I beg to enclose a copy of a letter from the War Department on this subject, holding that the draft Act abrogates conflicting treaties of exemption by reason of its subsequent enactment. This is undoubtedly so and if the question ever came before the courts they would probably so hold, but such an abrogation of a treaty provision agreed to with special reference to an occasion like the present would not relieve us internationally from our obligation thereunder. The War Department’s letter contains a plan whereby treaties of exemption may be in effect complied [Page 177] with, namely, by the discharge by you as Commander-in-Chief of declarants after they have been accepted for military service and so become soldiers in the American Army. The question is whether the same practice should be accorded to declarants not having treaties of exemption. As I read the War Department’s letter the plan is to ask you as Commander-in-Chief to discharge all declarants (whether having treaties of exemption or not) whose country protested against their forced enlistment.

As this policy is of far-reaching effect, not only upon declarants in this country, but American citizens who will perceive a discrimination between themselves and declarant aliens, I hesitate to announce this policy to diplomats here without your express approval.

As the matter is of very great urgency, may I ask you to read this letter in connection with my other letters of August 14, and 20, on the same subject, and let me know your views at the earliest moment?

Faithfully yours,

Robert Lansing

The Secretary of War (Baker) to the Secretary of State

The Secretary of War presents his compliments to the Honorable the Secretary of State, who has from time to time transmitted requests from Diplomatic Representatives accredited to the United States, of countries with which the United States is at peace, asking that their respective subjects or citizens be exempt from military liability in accordance with the provisions of the Selective Service Act of May 18, 1917, which excludes from the liability of military service, German subjects whether they have or have not declared their intention to become citizens of the United States and all other aliens with exception, however, of such among the latter class, who may have declared their intention to become citizens.

In reply to these various communications, the Secretary of War has the honor to make the following observations:

The President was authorized by the Selective Service Act to make Rules and Regulations, not inconsistent with the terms of the Act, in order to carry its provisions into effect. Pursuant to this authority, the President on May 18, 1917, prescribed Registration Regulations,5 providing that all alien residents should register on a day to be fixed, and June 5th, 1917, was by proclamation of the President fixed for registration.

[Page 178]

The President prescribed on June 30, 1917, Rules and Regulations for Local and District Boards6 in order further to carry into effect the provisions of the Act, and to determine in so far as the matter in hand is concerned, the method whereby alien residents other than declarants should be exempt from military service, to which all male persons between the ages of twenty-one and thirty, both inclusive, were rendered liable, with the express exception of German subjects whether they had or had not declared their intention to become citizens and of all other alien subjects who had not declared their intention to become citizens.

Foreign diplomats and consular officers are exempted from military liability by the law of nations as evidenced by their universal practice.

To determine whether a person registered as required by the Registration Regulations belongs to any one of the exempt classes and is therefore entitled to be withdrawn from the operations of the draft, the Rules and Regulations prescribed by the President, June 30, 1917, in Section 18, sub-section (e), provided the method by which German subjects, whether they had or had not declared their intention to become citizens, should be exempted, and Section 18, subsection (f), of the Rules and Regulations prescribed the method by which all other resident aliens who had not declared their intention to become citizens should be excluded from the operations of the Selective Service Act.

It was further provided in Sections 16 and 18 that, in order to discommode alien residents as little as possible, the Local Boards might in their cases postpone physical examinations until the question of alienage had been determined, whenever there was reasonable ground for believing that the persons were aliens and as such entitled to exemption. Aliens who have taken out their first papers are not entitled to this privilege.

Leaving out of consideration German subjects, whether or not they had declared their intention to become citizens, and also declarants of other nationalities, all persons claiming exemption on the ground of alienage are required to present to the Local Boards by which they may have been called for physical examination, affidavits verified by oath or affirmation, upon forms prepared by the Provost Marshal General, in order to establish to the satisfaction of the Local Board the right to the exemption in question.

It has come to the attention of the War Department that aliens have had considerable difficulty in preparing the affidavits required [Page 179] of them by the Rules and Regulations, and that the outlay for notarial fees in swearing to the affidavits is regarded by them and by Diplomatic Representatives of their countries as unnecessary and in some cases as a hardship. The Honorable the Secretary of State suggests that blank forms be provided for aliens and that free notarial service be given them. Forms have already been provided by the Provost Marshal General and are in the possession of the Local Boards, and the Secretary of War will take the necessary action to instruct the Local Boards to have the oaths required in the case of aliens other than declarants administered without expense to such alien claimants, if they present themselves in person to the Local Boards.

The Selective Service Act renders aliens who have declared their intention to become citizens liable to its provisions. The Secretary of War is informed that the Department of State has always considered declarants as aliens and has expressly held them to be such during the present war, and if it were not for the Act they would be considered as ordinary aliens and as such exempt from the liability to military service. The Act of Congress, is, however, mandatory, and it is common knowledge, for which no authority need be cited, that from a National point of view an Act of Congress subsequent to a treaty repeals the treaty if they are wholly inconsistent, and, in any event, supersedes the treaty to the extent of the inconsistency. It is incumbent, therefore, upon Local and District Boards to hold declarants liable to military service, and if found physically qualified to accept them into the National Army unless exempted or discharged on other grounds.

Should the Diplomatic Representative of the country whereof the declarant is a subject ask that he be exempted from the operations of the draft and that he be discharged from the National Army after he has been accepted into it, the President of the United States can, as Commander-in-Chief, direct that such a declarant be discharged from the Army. But the President cannot take this action before the declarant has, by being drafted into the Army, become subject to his authority as Commander-in-Chief, and the President cannot instruct Local and District Boards to disregard the terms of the Act, which is law for the President as well as for the Boards.

It is believed, however, that Diplomatic Agents will not take the same interest in their fellow countrymen who have declared their intention to renounce allegiance to the home country as they will in behalf of alien residents who have not declared their intention to renounce their allegiance, and that they will be disinclined to intervene in behalf of declarants if the right to do so be acknowledged.

[Page 180]

The Secretary of War, has, therefore, the honor to suggest to the Honorable the Secretary of State that whenever a Diplomatic Agent protests against the acceptance into the National Army of his fellow countryman who has declared his intention to become a citizen of the United States, the Department of State communicate the name of such person, accompanying it with the necessary information in order to enable such declarant to be identified to the end that the Secretary of War may, when the declarant has been accepted into the military service, confer with the President and suggest that in his capacity, as Commander-in-Chief, the President discharge from the Army a declarant in whose behalf the Diplomatic Representative has more than perfunctorily protested and whose discharge seems to be desirable in the interests of friendly diplomatic relations.

  1. 40 Stat. 1664.
  2. Provost Marshal General’s Office: Rules and Regulations Prescribed by the President for Local and District Boards, etc. (Washington, Government Printing Office, 1917).