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?
[Enclosure]
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.
