Private Records Seized by the

United States in Wartime—

Their Legal Status

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By BESS GLENN*
Washington, D. C.

T HROUGH capture by military forces in occupied enemy ter-

ritory and through seizure by civil agencies within its own
territorial limits, the United States has in time of war taken
over records of private industrial and business concerns. In its ad-
ministration of these records the Government has encountered com-
plex problems. The discussion in this paper will be limited to the
legal background and problems relating to the records of enemy-
owned business enterprises located in this country that were seques-
trated, under law, by civil authorities of the Government.
During the First and Second World Wars the United States,
acting through the Office of Alien Property Custodian, seized the
properties in the United States of numerous enemy-owned concerns
that were doing business here. These included insurance companies,
banking institutions, shipping firms, machine shops, importers and
distributers of various products, and printing, chemical, pharmaceu-
tical, electrical, and lumber companies.1 Among the properties so
vested by the Alien Property Custodian were well over 50,000 cubic
feet of records of the seized concerns. The collection of these
seized records that came into Federal custody is incomplete, as some
of the records have been returned or destroyed and as the Office of
Alien Property Custodian did not seize the records of every busi-
ness enterprise that it vested. When it decided that continued opera-
• The author, who has recently retired from the National Archives after more than
25 years of service, administered the former Justice and Executive Branch for more
than a decade. She has contributed previously to the American Archivist and other
periodicals, and is the author of papers on court records published in the American
Journal of Legal History, 4:241-256 (July i960) and the Quarterly Legal Historian,
vol. 1, no. 2 (July 1962).
1
Records of several foreign propaganda agencies of the Second World War, such
as the German-American Bund and the Dante Alighieri Society, were seized first by
the Federal Bureau of Investigation or the Foreign Funds Control unit of the Treasury
Department and later transferred to the Office of Alien Property Custodian. In the
National Archives are fragmentary records of seven of these propaganda agencies,
amounting to about 260 cubic feet.

399
400 THE AMERICAN ARCHIVIST
tion of a vested concern would be to the interest of the Nation's
war effort or when only a small percentage of the concern was
enemy-owned, the office permitted the records to remain with the
business. When it did take seized records into its physical custody,
it did not file them as its own official records; but certain corporate

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records—minute books, stock-certificate books, stock ledgers, cer-
tificates of incorporation, and so on—were segregated from the
records of the business concern and were filed so as to be readily
available to the official who was operating or liquidating the con-
cern.
In determining the final disposition of the seized records the
Government was confronted with the problem of their legal status,
particularly their status as official Government records. Were they
private property, returnable to the former owners? or, by virtue
of having come into the Government's possession, having been used
by it in the conduct of official business, and possessing research value,
had they been transmuted into official records of the Government?
The problem is inherent in the apparent conflict between the
statutes and treaties, on the one hand, that relate to the seizure or
return of private property, and, on the other, the Government's
statutory definition of its own records. There is no question, of
course, but that records are property, albeit a special kind of prop-
erty. In the absence of specific provision in national or international
law or in international agreements for the status or disposition of
seized private records, the United States has followed a meandering
course in its management of these records, now treating some of
them as private property subject to return to those from whom
they had been seized, now treating others as its own official records.
Examination of the statutes and treaties that are the authority
for the Government's actions concerning these records points up
the reasons for the inconsistency. In the Records Disposal Act of
1943 as amended2 the Government defines its official records as
follows:
all books, papers, maps, photographs, or other documentary materials, regard-
less of physical form or characteristics, made or received by any agency of the
United States Government in pursuance of Federal law or in connection with
the transaction of public business and preserved or appropriate for preservation
by that agency or its legitimate successor as evidence of the organization, func-
tions, policies, decisions, proceedings, operations, or other activities of the Gov-
ernment or because of the informational value of data contained therein.
2
44 USC, 1958 ed., sec. 366.
 PRIVATE RECORDS SEIZED IN WARTIME 401
This definition is the authority under which some of the seized
records have been treated as archives of the Federal Government.
The statutes and treaties that have been accepted as authority
for the Government's seizure of the records and for its return of
some of them do not distinguish between property and records; in-

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deed, with only one exception (noted below), they make no mention
of records in general or of any special type of record, but refer only
to property, assets, claims, interests, money, and the like. By in-
terpretation or inference the word records has been covered into
those terms. Provisions regarding seized property have been ap-
plied, in some instances, to seized records as well.
The Trading With the Enemy Act, originally passed in 1917 and
later amended,3 together with a number of Executive orders and
Presidential proclamations issued under the act, was the authority
in each of the two world wars for the Government's seizure of
property and records. The act authorized the seizure of properties
located in this country belonging to persons, corporations, and part-
nerships that were recognized as enemies or allies of enemies of the
United States and that were residing or doing business in the terri-
tory of enemy nations or in territory occupied by armed forces of
the enemy. Only in one section of this statute does the word records
appear. There,4 in providing a means for the Government to dis-
cover properties that came under the force of the act, the statute
authorizes the President "to require the production, or if necessary
to the national security or defense, the seizure, of any books of ac-
count, records, contracts, letters, memoranda, or other papers" held
by anyone having an interest in enemy-owned property. Under this
act the Government seized property and records.
As originally adopted in 1917, section 12 of the Trading With
the Enemy Act provided that claims of an enemy resulting from
seizures under the act should be settled after the war as Congress
should direct.5 Subsequent acts and resolutions of Congress as well
as the peace treaties signed after the wars made provision for the
disposition of seized enemy property and the settlement of claims.
Both section 5 of the joint resolution of July 2, 1921,6 declaring
an end to the First World War, and Article I of the treaty of peace
with Germany and Austria-Hungary signed at Berlin on August 25,
1921, declared that all property of nationals of those countries that
3
40 Stat. 411; 50 USC, 1958 ed., App., sees. 1-39.
4
50 USC, 1958 ed., App., sec. 5.
5
40 Stat. 423.
42
0 , .-,
Stat. 106.
Qt-r,*- -wnA
402 THE AMERICAN ARCHIVIST
had been taken over by the United States should be retained by the
United States.
An act of March 4, 1923, amended the Trading With the Enemy
Act by authorizing the President in certain situations to grant claims
up to $10,000 made by citizens of former enemy nations against

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"money or other property" held in trust by the Alien Property
Custodian. 7 The Settlement of W a r Claims Act of 1928 8 author-
ized the payment of certain claims of German, Austrian, and Hun-
garian nationals and provided for the ultimate return of all seized
property held by the Custodian. Under these two acts the Custodian
returned some property and records to former First World War
enemies. H e continued making returns until 1934, when Congress,
because of Germany's failure to meet its obligations under the debt-
funding agreement of June 23, 1930, adopted a joint resolution of
June 27, 1934,® which postponed the return of property or money
to German nationals so long as Germany remained in arrears under
that agreement. Although the resolution gave the President dis-
cretionary power to lift this ban in certain instances, very little
German property and few German records that were seized during
the First World War have been returned since the adoption of the
resolution.
The return of Italian properties seized during the Second World
W a r is authorized by a joint resolution of August 5, 1947,10 con-
sonant with Article 79 of the treaty of peace with Italy signed at
Paris on February 10, 1947. Under this authority the Office of
Alien Property Custodian returned Italian property, including some
records. Other seized Italian records, including some that could
not be returned because the former owners refused to accept them
or because the former owners no longer existed and had no suc-
cessors, were retained by the Office. Some Italian records in the
Custodian's hands were destroyed by the Office as abandoned prop-
erty, under authorization of Department of Justice Order 4185
of August 3, 1951, with no observance of any formalities required
by law for the destruction of official records of the Government.
Other Italian records were disposed of, in whole or in part, by the
Office under procedures laid down in statutes for the disposal of the
Government's records.
The return of German and Japanese properties seized during the
Second World War is prohibited by that part of the W a r Claims
7
42 Stat. 1511.
8
45 Stat. 254, sees. 3, 6, 13.
9
48 Stat. 1267.
10
61 Stat. 784.
 PRIVATE RECORDS SEIZED IN WARTIME 403
Act of 1948 11 that amends the Trading With the Enemy Act.12 Al-
though exceptions to this ban were permitted in the case of
claimants who as citizens of former enemy countries had been sub-
jected to discrimination by their governments on racial, religious, or
political grounds, 13 as a result of the War Claims Act of 1948 no

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seized Japanese and very few German properties or records have
been returned since the passage of the act. It is interesting to note,
however, that certain seized records of the Yokohama Specie Bank
(predecessor of the Bank of Tokyo), showing names of American
owners of Japanese government bonds, have been lent to the Bank
of Tokyo for an indefinite period so that those bondholders could
be paid. Some German and Japanese records have been destroyed,
part of them as abandoned property, part as official records of the
United States. Some are still held by the Government.
Overall and up-to-date figures on the total volume of records
that were seized, destroyed, or returned or that are still retained by
the Government are not available. A report of August 25, 1952,
from the former Chief of the Records Retirement Unit of the Office
of Alien Property Custodian gives statistics concerning some of the
records that were taken over during the Second World War. These
statistics apply only to records of concerns whose assets had been
vested by the Office and whose records had been inventoried and
held by the Records Retirement Unit in the Office's New York de-
pository. The report shows that the records it covers had originally
been measured as amounting to 37,125 cubic feet, of which 784 had
been returned to former owners, 13,533 destroyed, 5,598 trans-
ferred to the National Archives, 30 transferred elsewhere, and
11,436 retained in the depository.14 It does not give figures on
records that the Unit held of concerns that had not been vested or
on records that the Unit had not inventoried. Since the issuance of
this report many records seized during the Second World War have
been destroyed.
About 6,000 cubic feet of records seized during the First World
War and about 5,000 cubic feet of those seized during the Second
World War were received from the Office of Alien Property Custo-
dian by the National Archives under formal procedures for the
accessioning of Federal records. There, under formal procedures
prescribed for the disposal of Government records, about 4,200
cubic feet of First World War records were authorized for dis-
11
62 Stat. 1246, sec. 12.
12
50 USC, 1958 ed., App., sec. 39.
13
50 USC, 1958 ed., App., sec. 40 (3).
" T h e figures are so given in the report.
404 THE AMERICAN ARCHIVIST
posal and were destroyed. Later the National Archives transferred
to a Federal records center all its remaining holdings of seized
records that had been received from the Office of Alien Property
Custodian, adding to the considerable volume of seized records al-
ready in the centers. The Office of Alien Property Custodian, now

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a part of the Civil Division of the Department of Justice, still re-
tains a small amount of records that were seized during the Second
World War.
Seeking to determine whether those seized records that had been
created before the Office of Alien Property Custodian vested the
business concerns were official records of the United States Govern-
ment, in 1953 the National Archives looked for precedents in other
instances in which private records had passed under law into Fed-
eral custody and had been used by Federal agencies. It learned that
the Division of Liquidation of the Federal Deposit Insurance Cor-
poration, in liquidating insured banks placed in receivership, took
over and used the records of the banks, that the Corporation did
not consider such records to be those of the Government, and that
the Division of Liquidation—without the formalities prescribed for
Federal records—destroyed the banks' records upon completion of
liquidation unless other disposition of them was required by State
law. The Comptroller of the Currency followed similar practice in
liquidating insolvent national banks. And receivers or trustees ap-
pointed by Federal courts to liquidate bankrupt concerns considered
that the records of the bankrupt that they took over were not Fed-
eral records. Such trustees either returned the records to the bank-
rupt or his attorney after completion of the bankruptcy proceedings
or, when there was no one to whom the records could be returned,
destroyed them without procedural formalities.
A request from the National Archives in 1953 to the Director of
the Office of Alien Property, Department of Justice, for an opinion
of the Department as to the official status of the seized records
brought a reply from the Administrative Assistant Attorney Gen-
eral saying that "it has been concluded that they are not records
within the meaning of the Records Disposal Act." This conclusion,
not having been given as a formal opinion of the Attorney General,
has not resolved the question as to the official archival status of the
records.
It appears that if these records had become official records of the
Government they could not, under the laws of this country, be re-
linquished lock, stock, and title to private organizations. If, on the
other hand, they retained the character of private property, it seems
 PRIVATE RECORDS SEIZED IN WARTIME 405
that they could not at the same time have the quality of official
records of the Government. Nevertheless these records seem to be
a sort of archival platypus, linking the characteristics of two distinct
classes of records.
Doubtless the Government of the United States, in the absence of

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clear provision—in international law, in international treaties, or
in its own statutes—for the status of private records seized in time
of war, has the sovereign power to determine that some of the
seized records are its own official records and that others are the
private property of those from whom they were seized and hence
are subject to return to the former owners.
In its disposition of the records the Government has followed
a policy of self-interest, of expediency, rather than a consistent prin-
ciple of law. When its statutes provided for the return of seized
property to former owners, and when it found it desirable and pos-
sible to do so, the Government has returned seized private records.
Under statutory prohibition of the return of property seized from
certain enemies, in instances in which return was permissible but
not possible, and in instances in which the records seemed of in-
formational value, the Government has retained some of the rec-
ords and has destroyed others. In destroying the records it has
treated some as abandoned property, disposing of them without
formality, and has treated others as official records, disposing of
them under procedures required for the destruction of Federal rec-
ords. It has evinced no sense of obligation to preserve the records
intact for return to their former owners but has felt free to reduce
the cost of housing them by destroying those that it considered
valueless. It has made only feeble and inconclusive effort to achieve
a solution of the question as to the legal status of the seized records.
From the experience of the United States with these records, it
can be concluded that the status of private records seized during
time of war, together with some formal legal differentiation be-
tween records and property, should be a matter of interest to both
national and international law, and that it should be clearly set
forth in the laws of this country and in relevant treaties or other
international agreements to which the United States may in future
be a party.