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You don't want to limit it, because then you are going to speculate, and you fix it so when you need something for the defense of the United States you can't get it, and you are doing great harm to the country.

Senator LEE. What are you reading from?

Senator CHANDLER. From the President's letter concerning this bill. Senator SCHWARTZ. Concerning this subject. He wasn't talking about this bill.

Senator CHANDLER. He wasn't talking about this bill.

Senator BRIDGES. I agree with the theory which you have propounded here, but we want as near national unity as we can get in this country.

This country is divided as far apart as the poles, and I think that the majority of the country are with the general policy on national defense and the foreign policy, but let's not start in dividing we people who are thinking alike on this thing now, and if we can get some definite protection, let's do it.

Senator CHANDLER. You have been Governor of your State, and suppose you needed property, as Governor of your State, for the defense of people in that emergency, and you had exhausted yourself trying to get it by fair means; and you couldn't find anything else as good to use, and then you want to get it, and you couldn't get it, you are going to fix it so you can get it, within reasonable limits and within a reasonable time; especially if you need it immediately and you are going to give it back to the fellow if he wants it back. You are not going to keep it.

If they take a newspaper or radio, which they are not going to do, they have got to give it back to him.

Senator BRIDGES. Let's make it specific to relieve any worry on these parts. I am willing to make it specific enough and general enough to do what you want to do.

Senator CHANDLER. The people of the country don't want you to do it, either. They don't want you to limit this. They don't want you to limit the President's authority to defend the people of this country by narrowly saying "for the armed or naval forces," and they don't want you to do that.

Senator GURNEY. Mr. Chandler, in this modified proposal, committee print No. 2, where is the power to requisition limited to the armed forces? Where is the wording in that bill which limits it to the armed forces? I can't find it.

Senator CHANDLER. I don't know that it is in there.
Senator GURNEY. It is not in there.
Senator CHANDLER. I didn't say it was.

Colonel WATT. They changed the title on page 8.

Senator GURNEY. We can change the title, but the wording in the body of the bill-I am not a lawyer-gives them the right to requisition material for the armed forces or in the Lend Lease Act, or anything in the national defense. It is only in the title, and we can certainly change that.

Mr. Cor. Senator Lodge asked me a moment ago what is not covered in the language in the second draft of the bill. I don't have before me the hearing, but I only have a recollection that Admiral Robinson of the Navy and Admiral Land of the Maritime Commission indicated that the scope of the bill, the second draft that was offered

by the War Department was too narrow in its application, and then pointed out to me that it would not cover privately owned dock facilities, if they happened to be needed, or loading cranes or ships refueling.

It might even cover the Lockheed plant, which was referred to in correspondence from the President to Senator Reynolds, the chairman of this committee.

That is specifically covered in the limiting language that you have marked on page 4 of the draft.

Senator LODGE. The question I was directing your attention to was using the phrase, "equipping the armed forces of the United States and and the lease-lend countries." You ought to put that in, too.

Senator REYNOLDS. What was that?

Senator LODGE. I would put in the words, "for the lease-lend countries." Countries which are to receive aid under the lease-lend bill. Get that properly drafted. I don't want to raise the question of whether you are going to do one thing for the United States and another thing for the lease-lend countries.

Judge PATTERSON. I think the expression "national defense" is better. I have in mind, as I said, the Maritime Commission. They would have a pretty hard job, I think, getting any machinery or materials, if it was for equipping the armed forces of this country, or any other country.

Senator LEE. Senator Lodge, wouldn't that, in your opinion, "national defense," give enough protection there to the property as you are seeking to protect it?

Senator LODGE. I have no desire to hamper any effort for the protection of the United States of America. I do think that it is desirable for Congress to think out what it means and to say what it means, and to mean what it says, and that it is a dereliction of duty for us to draw any more blank checks than we possibly have to, that is all.

Now, since we first started hearings on this bill a whole lot of things have come to light that nobody had any thought of at all at the beginning.

This whole point about requisitioning property for foreign countries, that never came up until today. That is a brand-new point, and the question of seizing dock facilities or ships, that has just come up now, and it seems to me that we want to be as definite as we can. We don't want to be restrictive, but we want to be accurate and we want to be definite. That is my thought.

Judge PATTERSON. What Senator Bridges said about the national unity has some influence with me. I noticed that when our original draft went in, a great many newspapers were caustic of it.

When the revised one went in, quite a number of them supported that, who had originally been critical. I think that is a factor in favor of the revised draft.

Senator GURNEY. Could we not, on page 4, line 8, after the word "President", add the words, "but not later than June 30, 1943," and could we not add as a new section to the modified print section 2 of the one proposed by Senator Chandler this morning, and then amend the title so as to read:

A bill to authorize the President of the United States to requisition certain property for the purpose of promoting the national defense and to overcome shortages.

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That is the suggestion I have, and otherwise to take the bill as submitted by Secretary Patterson, because it includes

Senator CHANDLER. Let me ask if he wouldn't prefer to

Senator GURNEY (interposing). May I finish my statement?
Senator CHANDLER. Yes.

Senator GURNEY (continuing). Because it does include specific language and includes inventions, and it includes the payment of 75 percent of the value of the property instead of 50 percent as proposed in Senator Chandler's revised print.

Senator CHANDLER. No; that isn't my print.
Senator GURNEY. It is in there by reference.
Senator CHANDLER. It refers to Public, 839.
Senator GURNEY. It is in there by reference.

Judge PATTERSON. We stepped it up to 75 in this.

Senator GURNEY. For those reasons the bill would be more to my liking if we add section 2 of Senator Chandler's proposal which retains to the owner the right to get his property back.

Senator LEE. Mr. Chairman, I would like to hear Senator Austin. He tried to say something a time or two.

Senator REYNOLDS. We would like to hear Senator Austin. He has given a great deal of time and study to the subject.

Senator AUSTIN. There is one suggestion about this limitation of property that I would like to make, that also affects the basis of the exercise of these extraordinary powers, which have been held not to be exercisable except in time of war, and that is this:

Using the third draft, the one that was brought in this morning, on the end of the parenthetical clause 1, which reads: "The use of any property is required for the defense of the United States."

I would suggest to add, after the comma, and inside of that clause, the following words:

and such need is immediate and impending, and such as will not admit of delay or a resort to any other source of supply.

Now, that, if accepted, would be a limitation both upon the property and upon the circumstances under which the power is to be exercised. Senator LEE. What word would that follow?

Senator AUSTIN. The comma after the words, "United States."
Now, by way of comment-

Senator CHANDLER. Read that again. I want to get that.
Senator HILL. Yes; read that slowly, will you, Senator?

Senator AUSTIN. All right. I am going to start with the phrase as

it appears in the draft. In parentheses:

(1) The use of any property that is required for the defense of the United States, and such need is immediate and impending, and such as will not admit of delay or a resort to any other source of supply.

I have put together what is in the bill and what I suggest, in making that statement.

Senator CHANDLER. Do you mean "impending" or "imperative"? Senator AUSTIN. "Impending.'

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Senator HILL. Read that last again for me, Senator?

Senator AUSTIN. Yes.

and such need is immediate and impending and such as will not admit of delay or a resort to any other source of supply.

Now, that is not taken out of thin air. That is the result of study that I made in connection with the lend-lease bill.

Senator SCHWARTZ. Well, Senator, are any of your limitations covered by 3 or 4 here?

Senator AUSTIN. I do not think they are, because what is now used is with respect to that clause describing the property.

Senator CHANDLER. Where do you go from there now?
Senator AUSTIN. You go right on then.

(2) All other means of obtaining the use of such property for the defense of the United States upon fair and reasonable terms have been exhausted, and, (3) the use of other property having equivalent utility for the defense of the United States cannot be obtained.

You see, that connects all right. It is in the same vein, and, of course, in a different category-number 1 is a different category from 2 or 3.

Senator CHANDLER. Yes, sir.

Senator LEE. It repeats the thought, at least, doesn't it, Senator, "and a resort to any other supply"?

Senator AUSTIN. Yes; it does.

Senator LEE. Not that it would hurt anything.

Senator CHANDLER. I have no objection to it. It does repeat some,

but it doesn't hurt it.

Senator HILL. It says the same thing twice.

Senator AUSTIN. Well, hardly that.

Senator HILL. It is all right.

Senator AUSTIN. Let me suggest that it doesn't.
Senator HILL. All right.

Senator AUSTIN. And for this reason: 3 relates to property of equivalent utility, and not to the same property. Now, I make the suggestion, with a sort of consciousness that I have another idea in mind in connection with the whole bill, and that is that if you assume that we have plants, small plants, in this country, scattered over the land, that have one or two or three machine tools which are key instruments, and without which that plant is going to be just busted, and its employees turned loose without employment, then we have a situation where the question of public policy, which we must determine in passing on this question, involves the question of whether this extraordinary power should be exercised in such a case at all.

It doesn't have to do with the value of severance in ascertaining damages. It is a question that arises, in my mind, with respect to a wholesome condition in the country, to keep it strong for national defense.

In other words, I conceive of this great country as requiring of its Government that it shall not destroy those enterprises that are not engaged in producing war materials, but that are essential to the health and the welfare of the country.

We have got to keep this country going as a country. We can't convert it into just a mere armed camp, and so, as I have studied the thing over, I have evolved this thought, and I admit it is very artificial.

It needs touching up. If the idea is right, it should be written with more care than I was able to give it on an airplane. That is, putting

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in here a proviso to the exercise of the power, which would read substantially as follows:

Provided, That while a state of war has not been declared by Congress, this authority shall not be exercised in any manufacturing plant in operation, if the unavoidable and necessary consequence thereof would be the cessation of the business of such plant or of other plants of the same proprietor, dependent solely on the article or the articles condemned or commandeered.

Now, in some manner we ought to draft on the legislation the thought that Secretary Patterson expressed in his evidence, that the administration will not exercise this power in those cases where it would collapse an industry. That is definitely in your testimony.

Senator LEE. Senator, if the choice had to be made as between your own language here, that it is so necessary to defense that that would outweigh the harm the other might cause, if we had something in there that, in that extreme case, that the Government could take it, I think you have a good point.

I wouldn't want to show in the bill that the Government couldn't, under any circumstances, although the national welfare depended on it, take it, even though it might cause inconvenience there.

Senator AUSTIN. I recognize the point. Now, then, that is the value of having more than one mind operate on the same idea. Let's put it in form.

Senator DOWNEY. May I suggest that Senator Austin, though, does cover the eventuality of war. Your's applies only to peacetime. Senator AUSTIN. That is right.

Senator LEE. I understand that, but I already, in this situation, conceived circumstances that the case might be such that the ability to act might prevent war by strengthening our defense, where as inability to act might lay us open.

Senator AUSTIN. I see your point, and I would like to consider the language of your thought, what form you want to put it into.

You know, we can't entirely forget that, even in the greatest of emergencies we ought not to wholly disregard constitutionalism.

The thought was expressed by Mr. Justice Sunderland clearly, as follows, in the United States v. McIntosh (283 U. S. 605):

From its very nature, the war power, when necessity calls for its exercise, tolerates no qualifications or limitations unless found in the Constitution or in applicable principles of international law.

In the words of John Quincy Adams, this power is tremendous. It is strictly constitutional, but it breaks down every barrier so anxiously erected for the protection of liberty, property, and of life:

To the end that war may not result in defeat, freedom of speech may, by act of Congress, be curtailed or so denied

and there he goes on and fills in his thought with a great many examples of these extraordinary powers, and concludes with the following phrases:

And other drastic powers wholly inadmissible in time of peace, exercised to meet the emergencies of war.

What we are doing, you see-and we have to sail between some dangerous rocks here what we are doing, in the exercise of our power, is to exercise a war power in time of peace.

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