member of Congress with whom I have discussed the subject believes that a majority of Congress would refuse a President a declaration of war, if, and when, he asked for it.

There is no instance in our history when it has been refused by the Congress. I am apprehensive that no such precedent will ever be established. The demand to stand behind the President, the pressure of party loyalty, becomes almost insuperable in such a situation. Members of Congress may justify their course in the future as they have in the past, but I do not think it can be said that they are acting in a representative capacity.

Our concern should be to establish a closer contact between the people and their Government on this vital matter of war abroad. If any opponent of this resolution can suggest some way in which the representative system can be made truly representative on this momentous issue, I, for one, would be glad to hear it advanced. But I hope that the consideration of this proposal will not be beclouded by empty phrases about a representative system which at this point of foreign war loses its representative character.

To preserve the democratic process we must buttress it and make it more effective. Nothing so discredits it as empty formalism. Let us not overlook the fact that the political disillusionment following the last war played its part in the undermining of faith in democracy in some other nations. In the chaotic economic and political situation prevailing in the world today no one can foresee future developments, but I unhesitatingly assert that another war, if it comes, will not give anyone what he wants. Modern war does not attain its announced objectives. Should war come and we become involved in it, the people of this country will be more deeply shocked and disillusioned by its results than they were after their tragic experience in the "war to end war" and "to make the world safe for democracy."

After another war has brought catastrophe at home and abroad we may anticipate in the United States an attack upon the democratic system of proportions never before experienced. This proposal, if submitted and ratified, would place the responsibility for the decision on war abroad in the hands of the people. If they voted for it, they would have to accept responsibility for the results, and thus we would protect our system of government from an effective charge, even though untrue, that a small group of public officials in the legislative and executive branches of the Government had made the decision for war and produced the chain of miseries which are certain to follow it.

I have no doubt that opponents of this joint resolution will attack it before this committee as they did in the House of Representatives, when it was under consideration at the last session, on the ground that it will affect the present situation abroad. A year ago when a different proposal for a referendum was before the House it was strongly urged in the press and elsewhere that Members should "stand by the President" in order to present a united front in the Far Eastern struggle. Some newspapers which have been most violent in their criticism of the President on domestic issues went so far as

to urge the Members of the House to stand behind him at all costs even at the sacrifice of their convictions. It was an emergency, so they said. A majority of the House took this advice. The referendum resolution was not even permitted to be taken up for consideration, but can anyone now maintain that the failure to consider that proposal checked Japan in her war in China?

The war referendum was not again taken up for consideration after January 1938, yet in March of that year there was a crisis, and Germany absorbed Austria. It certainly cannot be argued that the warreferendum proposal aided that unhappy event. Then in September 1938 came Munich. Would anyone contend that the failure to consider the war-referendum proposal had checked Germany's advance? Hitler's help came, as Senator Borah has pointed out, from England and France. Then came the partition of Czechoslovakia in March 1939, and later the Italian conquest of Albania. No consideration by Congress of the war-referendum proposal can be claimed by the wildest stretch of the imagination to have had any effect upon the situation in the Far East nor in Europe.

If this proposal should be submitted at this session of Congress it could not be ratified before the end of at least 2 years. During this lapse of time there is grave possibility that there may be a succession of crises. In short, either we wait with the urgent advocacy of this measure forever or we start sometime. I believe that we should start now, because anyone who raises the issue that this proposal will weaken or strengthen any group in Europe must do so upon the ground that we are to implement our foreign policy by active military support with an expeditionary force on foreign soil. To take this position is to challenge the good faith of every statement which has been made, so far as I know, by any responsible person speaking for the administration. In short, it cannot be claimed that this measure affects in any way the struggle for power abroad unless it is at the same time admitted that military measures on foreign soil are in contemplation.

Despite the misrepresentation, despite the powerful opposition of part of the press, and despite the opposition of the administration, every poll of public opinion has shown a large majority of the people to be in favor of this joint resolution. It is a measure to make democracy real on the supreme issue of foreign war while at the same time completely protecting the Nation, its possessions, and this hemisphere. I believe that the people have a right to pass on this proposal.

I ask your consideration for the witnesses who at their own expense have come here to testify in its behalf. I also ask that following the testimony of those who may appear in opposition that you will give an opportunity to Senators who have considered this matter to appear later.

Senator HATCH. Thank you, Senator La Follette. So far as the request just made is concerned, I am sure the members of the subcommittee will be glad to hear, within reasonable limits, those who wish to speak upon the joint resolution.

Senator LA FOLLETTE. Yes. There has been a great deal of courtesy in this matter, and we appreciate it very deeply.

Senator HATCH. The next witness on our list is Mr. Morris Ernst.

STATEMENT OF MORRIS L. ERNST, NEW YORK CITY

Mr. ERNST. Mr. Chairman and gentlemen, I am an attorney and represent no one but myself in this matter.

I think that this proposal must be approached calmly and with caution, as an amendment to the Constitution. It cannot become effective for a year or two, at least. And, therefore, it seems to me that the consideration of this fundamental addition to the Constitution can carry no implications that are directed against individuals; that is, the present Congressmen and Senators, in the main, or the Chief Executive of the United States. It is a fundamental change that has to be considered entirely divorced from personalities, or even, if you please, any immediate so-called emergency situations of any kind.

The main attack, as I see it, on the proposal is that it is a new idea and departure; that is, new in the sense of "new" known as derogatory. And as I read the statement of ex-Secretary Stimson, it is a departure from the thinking of the American people. I think it is an entirely false premise for the opposition to go upon, and it is entirely inconsistent with the position taken by the founding fathers in the debates on the Constitution of the United States. I think this proposal is a logical and deductible conclusion from the position set forth in the Federalist papers, the original acts of the Constitutional Convention of 1787.

I think it is important to explain those amendments and that approach to the problem, because, with all additions to the Constitution, there is a lethargy of the public mind which starts in with resentment for any change. I think that an examination of the 1787 records will show that a referendum on the most important points, for humanity and for organized society-that is, sending our boys abroad to be killed, if it is involuntary, violates the rights and the thinkings of the founding fathers. In 1787, there was no capacity for a referendum; and so the founding fathers had to proceed with the democratic process with respect to a declaration of war, as far as the then conditions permitted.

In the first place there was no literacy to amount to anything. The record is clear that the illiteracy figures amounted to as high as 75 percent among the people; and records also show, in the impaneling of jurors, that the literacy was no greater than 48 percent; a very large percentage could neither read nor write.

And then the distance and the time of travel made a referendum inconceivable. It took 2 days to travel from New York to Philadelphia, and you had to travel by boat to New Brunswick. And the fastest conveyances during the Constitutional Convention ran only 3 days a week. Pinckney and others at the Constitutional Convention declared during the debates that they could not conceivably go back home and come back to Philadelphia for the Convention, because it was too arduous a trip. To go to Virginia required 4 weeks. There were only 75 postoffices at that time; there were less than 100 newspapers; and the largest circulation of a newspaper was about 1,000. And so, against that background of illiteracy and the difficulty of communication, there was no reason to believe that

the founding fathers could even think in terms of the completion of the democratic process, to wit, allowing the people themselves to share in the decision as to whether they themselves would serve in the war.

As a matter of fact, although the Convention took tremendous strides in the direction of democracy, it was projected in the main on a society where very few people were even allowed to vote. Property qualifications up and down the coast resulted in a situation where, even on the vote on the ratification of the Constitution itself, there were approximately only 200,000 people who had a legal right to cast a vote.

The set-up of the Senate and the House is discussed by the founding fathers, and it carried with it the implication that, against the background of lack of communication and illiteracy, a distinction. must be made between the Senate and the House, and the Senate, in effect, would be elected through a specially delegated authority, namely, the legislature of the States, so as to be sure that we would preserve in our governmental structure at least one chamber that is remote from the illiterate proposition, as to which there were ready means of communication, as to the proposed desires of Congress.

Now, the Articles of Confederation, which had preceded the Constitution, however, had made clear the principle which is carried in this resolution, and carried, in article VI, the definite construction of the wishes of the people that were there that there was a difference between defense in the case of an invasion and action in case of aggression.

The preamble of the Constitution of the United States emphasizes the question of the common defense; and in the Federalist papers, Nos. 25 and 28, they went so far as to use modern terms and talk of the fact that the Colonies were encircled from Maine to Georgia, and indicated that the main concern with respect to the power of declaring war was defense from invasion of enemies solely, and the concern over insurrection within the Colonies. Each State at that time had an enemy frontier. There was no such thing as discovery and isolation from enemies.

Georgia, according to the records as I read them, only came into the Union because of the fear of the enemy to the South. Virginia refused to join in the Nation until it was assured that Spain's position with respect to navigation on the Mississippi had been clarified, and the cession from Spain for 25 years of navigation had been withdrawn.

The Treaty of Peace of 1783 was held up for months because Massachusetts' main concern was the enemy to the north and the right of fishing around the Newfoundland waters.

In other words, the founding fathers, in that period, were not only faced with illiteracy and the lack of means of communication but realized that we had enemies on the threshold.

Senator HATCH. Senator Borah.

Senator BORAH. I will ask a question later.

Mr. ERNST. Against this background of 1787, it clearly indicates that the founding fathers were faced at the Convention in Philadelphia with the desire of pressing to the then extreme democratic proc

ess, the war-making power, due to the lack of communication, enemies directly impinging on every State, and the illiteracy of the population.

We find that in the discussions in the Constitutional Convention there is a very interesting parallel to the consideration of this resolution. Obviously, the questions of war and treaties were not disassociated in the minds of the delegates at that time any more than they can be entirely disassociated now.

It was urged that the treaty-making power must be left in a very small group, which could be well informed. Madison on August 23 arose in the Convention to indicate that treaties impinge on the needed negotiations in the meeting of human minds and, therefore, have to be left to comparatively small groups. He indicated that the war-making process cannot be analogized because, in order to declare war, there was no necessity for the meeting of the minds prior to the war. And he discussed this whole distinction.

You will find that Hamilton, who was the leader of the aristo-. cratic nondemocratic vote, and whose philosophy spurned in the main the judgment of the people who were then, to be sure, to be totally eclipsed, asked that this power to make war should not be left to the House of Representatives because the House would be too numerous, and it was then contemplated that the House would include no more than 65 persons. He argued in effect that the House would not meet often, and that in the bulk it was expensive to get the House together, and therefore the sole power for the making or declaration of war should be vested in the Senate.

That position was rejected because the delegates at the Convention insisted that this supreme function of society should be left on the broadest possible base.

The original draft discussed by the founding fathers will respect to this declaration, or power to make war, included the words "make war." That was changed to the words "declare war," on the suggestions and views of Madison, Gerry, and others. Butler, who represented the extreme of the nondemocratic forces, wanted to have the power rest solely in the President, and he was defeated. Pinckney wanted it solely in the Senate, and he was defeated.

The change from the word "make" to "declare" is a significant one. It carries the idea of distinction also implied in this resolution, that the Executive would still have the power to repel invasion and sudden attack. Ellsworth raised in the Convention the point that there is a material difference between the case of making war and making peace. It should be more easy, he said, to get out of war than to get into it. War is simply an overt declaration. Peace is attended with intricate and secret negotiations.

George Mason, the only delegate in the entire Convention who proposed that we incorporate in the Constitution the Bill of Rights, for which he received no support during the entire debate, which necessitated the separate addition of the first 10 amendments to the Constitution, argued in favor of thwarting rather than facilitating war, but of facilitating peace, and was against giving the power to the Executive because the Executive could not safely be trusted with it, or giving it to the Senate alone because it was not so constructed as to be entitled to it.