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Repeal of the Neutrality Act

Published online by Cambridge University Press:  12 April 2017

Quincy Wright
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Extract

On November 17, 1941, the President signed an Act repealing Sections 2, 3, and 6 of the Neutrality Act of 1939 and authorizing him during the unlimited national emergency proclaimed on May 27, 1941, to arm United States merchant vessels. The repealed provisions had required transfer of title of all goods before export to belligerents and had prohibited American ships from being armed, from trading with belligerent ports, and from passing through combat areas proclaimed by the President. With elimination of the arms embargo by the Act of November 4, 1939, practical elimination of the loan prohibition by the Lend-Lease Act of March 11, 1941, and elimination of the "cash and carry" and "combat area" provisions by the present Act, the experiment in a new type of neutrality which Congress originated in 1935 was practically ended.

Type
Research Article
Information
American Journal of International Law , Volume 36 , Issue 1 , January 1942 , pp. 8 - 23
Copyright
Copyright © American Society of International Law 1942

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References

1 Public Law 294, 77th Cong. The Act also provides that Sec. 16 of the Criminal Code relating to bonds from armed vessels on clearing should not apply to vessels armed under the Act.

2 The authorization of Congress to act by concurrent resolution is probably unconstitutional. See Q. Wright, "The Power to Declare Neutrality under American Law," this JOURNAL, Vol. 34 (1940), p. 307

3 The prevailing opinion is stated by Edwin Borchard and W. P. Lage (.Neutrality for the United States, New Haven, 1937, p. 314): " I t is doubtful whether the committee proved the thesis that munition makers and bankers forced the United States into war." See Newton D. Baker, Why We Went to War, New York, 1936; Charles Seymour, American Neutrality, 1914-1917, New Haven, 1935.

4 See Borchard and Lage, op. cit., p. 314 ff.; Philip C. Jessup, Neutrality: Its History, Economics and Law, New York, 1936, Vol. 4, p. 124 ff.

5 See Q. Wright, The United States and Neutrality, Public Policy Pamphlet, No. 17, Chicago, 1935; Schuyler Foster, "How America Became Belligerent: A Quantitative Study of War News, 1914-17," American Journal of Sociology, January, 1935, Vol. 40, p. 464 ff.

6 " It may turn out that they (the Neutrality Acts, 1935-39) merely served as patterns for a mess from which it will be difficult to extricate ourselves." Francis Desk, "The United States Neutrality Acts, Theory and Practice," International Conciliation, No. 358, March, 1940, p. 114.

"The results . . . would probably be bad from the standpoints both of those who are interested merely in keeping the United States out of war and of those who are interested in preventing war in the world. This needs to be stated plainly, because a vast amount of sentiment has been rallied to the support of isolationist neutrality under the delusion that it represents a peace policy." Eugene Staley, Raw Materials in Peace and War, New York, 1937, p. 43. See also War Losses to a Neutral, League of Nations Association, New York, December, 1937.

"The derision of neutrality has given rise to iconoclastic measures which can only be understood in the light of unneutral policies of 1914-17. How they will serve remains to be seen." Borchard and Lage, op. cit., p. 343. "American efforts to combine a firm and impartial neutrality with a degree of participation in the sanctions program have been severely criticized on various sides." Georg Cohn, Neo-Neulrality, New York, 1939, p. 120.

"It is probably unduly complimentary to that statute (1935) to credit it with any one rational underlying thesis." Jessup, op. cit., Vol. 4, p. 124. See also Q. Wright, "The Lend-Lease Bill and International Law," this JOURNAL, Vol. 35 (1941), p. 312.

7 Department of State, Press Releases, Aug. 31,1935, Vol. 13, pp. 162-3, and comments by Borchard and Lage, op. cit., p. 315 ff., and Jessup, op. cit., p. 125. In his message to Congress, Sept. 21, 1939, President Roosevelt said: " I regret that the Congress passed that Act. I regret equally that I signed the Act." Department of State Bulletin, Sept. 23, 1939, Vol. I, p. 277.

8 Q. Wright, "The Transfer of Destroyers to Great Britain," this JOURNAL, Vol. 34 (1940), p. 680 ff.; "The Lend-Lease Bill and International Law," supra.

9 77th Cong., 1st Sess., Sen. Rep. No. 764, p. 3.

10 77th Cong., 1st Sess., House Rep. No. 1267, p. 2.

11 Ibid., p. 10.

12 Ibid., p. 2.

13 War Message, April 2, 1917, J. B. Scott, ed., Official Statements of War Aims and Peace Proposals, December, 1916, to November, 1918, Washington, 1921, p. 89.

14 See J. B. Moore, The Principles of American Diplomacy, New York, 1918, Chap. 2; Borchard and Lage, op. cit., Chap. 2. The documents are printed in Francis Deak and Philip C. Jessup, A Collection of Neutrality Laws, Regulations and Treaties of Various Countries, Washington, 1939, Vol. 2, p. 1079 ff.

15 "With me a predominant motive has been to endeavor to gain time to our country to settle and mature its yet recent institutions, and to progress without interruption to that degree of strength and consistency which is necessary to give it, humanly speaking, the command of its own fortunes." J. D. Richardson, Messages and Papers of the Presidents, Washington, 1909, Vol. 1, p. 224.

16 Q. Wright, "The Present Status of Neutrality," this JOURNAL, Vol. 34 (1940), p. 410 ff.

17 Q.Wright,"ThePresentStatusof Neutrality," this JOUBNAL, Vol. 34 (1940), pp. 393-4.

18 Harvard Research in International Law, Draft Convention on Aggression, this JOURNAL, Supp., Vol. 33 (1939), p. 844 ff.

A Department of State memorandum submitted to the House Committee on Foreign Affairs during the latter part of the Hoover administration opposed a bilateral arms embargo and stated: " Much of the old conception of neutrality as a possibility is gone in the modern world if large nations are involved in war." Borchard and Lage, op. cit., p. 307.

In a letter to Col. House in 1918 Elihu Root wrote: "The view now assumed and generally applied is that the use of force by one nation towards another is a matter in which only the two nations concerned are primarily interested, and if any other nation claims a right to be heard on the subject it must show some specific interest of its own in the controversy. . . .

The requisite change is an abandonment of this view, and a universal, formal and irrevocable acceptance and declaration of the view that an international breach of the peace is a matter which concerns every member of the Community of Nations—a matter in which every nation has a direct interest, and to which every nation has a right to object." Charles Seymour, The Intimate Papers of Colonel House, Vol. 4, p. 43. See also Root, "The Outlook for International Law," Proceedings, American Society of International Law, 1915, pp. 7-9; Jessup, Elihu Root, New York, 1939, Vol. 2, p. 376.

Secretary of State Stimson said on Aug. 8,1932: "The laws of neutrality became increasingly ineffective to prevent even strangers to the original quarrel from being drawn into the general conflict. . . . War between nations was renounced by the signatories of the Briand- Kellogg Pact. . . . Hereafter when two nations engage in armed conflict either one or both of them must be wrongdoers—violators of the general treaty. We no longer draw a circle about them and treat them with the punctilios of the duelist's code. Instead we denounce them as lawbreakers. . . . Under the former concepts of international law when a conflict occurred, it was usually deemed the concern only of the parties to the conflict. The others could only exercise and express a strict neutrality alike towards the injured and the aggressor. . . . Now under the covenants of the Briand-Kellogg Pact such a conflict becomes of legal concern to everybody connected with the treaty. . . . As was said by M. Briand, quoting the words of President Coolidge: 'An act of war in any part of the world is an act that in jures the interests of my country.' The world has learned that great lesson and the execution of the Briand-Kellogg Treaty codified it." Foreign Affairs, Special Supplement to Vol. 11, No. 1.

In his statement of July 16, 1937, endorsed by most of the states of the world, Secretary Hull wrote: "Any situation in which armed hostilities are in progress or are threatened is a situation wherein rights and interests of all nations either are or may be seriously affected. There can be no serious hostilities anywhere in the world which will not one way or another affect interests or rights or obligations of this country." Fundamental Principles of International Policy, Washington, 1937, p. 1.

See also Q. Wright, "Neutrality and Neutral Rights following the Pact of Paris," Proceedings, American Society of International Law, 1930, p. 79 ff.; "The Present Status of Neutrality," this JOURNAL, Vol. 34 (1940), p. 407; Norman Wait Harris Memorial Foundation, "An American Foreign Policy Toward International Stability," Public Policy Pamphlet, Chicago,jl934, 2nd ed. 1938, p. 32 ff.; W. N. Hogan, "The Problem of Non-belligerency Since the World War," Manuscript Thesis, University of Chicago Library, 1939.

19 Q. Wright, "The Lend-Lease Bill," loc. cit., p. 308. See also President's message, Oct. 9, 1941, and statements of the Secretaries of State, War, and Navy in Hearings before the Committee on Foreign Affairs of the House on H. J. Res. 237, "Arming American Merchant Vessels," October, 1941, repeated in part in House Report No. 1267, 77th Cong., 1st Sess.; and Statement of Secretary of State in Hearings before the Committee on Foreign Relations, U. S. Senate, on H. J. Res. 237, "Modification of Neutrality Act of 1939," October, 1941.

20 A Treatise on International Law, 8th ed., Oxford, 1934, p. 707.

21 By ratifying the League of Nations Covenant. See Cohn, Neo-Neutralily, p. 43 ff.

22 77th Cong., 1st Sess., House Rep. No. 18, pp. 5-6.

23 Q. Wright, "The Meaning of the Pact of Paris," this JOURNAL, Vol. 27 (1933), p. 44 ff.; J. L. Brierly, The Law of Nations, 2nd ed., Oxford, 1936, p. 253 ff.; H. Lauterpacht, Oppenheim's International Law, 6th ed., London, 1940, p. 155.

24 Q. Wright, "The Distinction between Legal and Political Questions with especial reference to the Monroe Doctrine," Proceedings, American Society of International Law, 1924, p. 57 ff.; "Territorial Propinquity," this JOURNAL, Vol. 12 (1918), p. 519 ff.; G. G. Wilson, Handbook of International Law, 3rd ed., St. Paul, 1939, pp. 55-71.

25 "When a small injury is inflicted in obedience to an almost irresistible impulse, the law may overlook it, but in principle we may not hurt another or infringe his rights, even for our self-preservation, when he has not failed in any duty towards us. Self-preservation, when carried beyond this point, is a natural impulse, an effect of the laws to which human nature is subject in the stage of advancement to which it has yet attained. But the office of jural law is not to register and consecrate the effects of the laws of nature, but to control them by the introduction of the principle of justice, where an unreflecting submission to the tendencies which in their untamed state they promote would be destructive of society." John Westlake, International Law, Cambridge, 1910, Vol. 1, p. 311.

26 Q. Wright, "Rights and Duties under International Law as affected by the Resolutions of Panama," this JOURNAL, Vol. 34 (1940), p. 246; "The Lend-Lease Bill," he. cit., p. 308 ff.

27 But see C. C. Hyde, "Secretary Hull on the Kellogg-Briand Pact," this JOUHNAL, Vol. 35 (1941), p. 118.

28 Lauterpacht-Oppenheim, op. cit., Vol. 2, p. 110.

29 Ibid., pp. 110-118.

30 See Q. Wright, " Meaning of the Pact of Paris," this JOURNAL, Vol. 27 (1933), pp. 51-54.

31 United States, Rules of Land Warfare, Washington, 1914, Sec. 379.

32 Quoted, ibid., from Rules of Oxford Session, Arts. 85, 86, J. B. Scott, ed., Resolutions of the Institute of International Law, New York, 1916, p. 42.

33 Draft Convention on Rights and Duties of Neutral States in Case of Naval and Aerial War, Art. 14, this JOUBNAL, Supp., Vol. 33 (1939), p. 329.

34 See Statements by John H. Finnerty and Philip C. Jessup, Senate Hearings on Modification of Neutrality Act of 1939, pp. 194, 252.

35 Harvard Research in International Law, Draft Convention on Neutrality, Art. 114, he. cit., p. 788.

36 See Lauterpacht-Oppenheim, op. cit., Vol. 2, p. 513; Q. Wright, "Meaning of the Pact of Paris," be. cit., pp. 59-60.

37 See above, note 18.

38 See Q. Wright, "Meaning of the Pact of Paris," toe. cit., and "The Present Status of Neutrality," loc. cit.

39 Ibid.; C. VanVollenhoven, The Three Stages in the Evolution of the Law of Nations; The Hague, 1919, p. 95.

40 Hall, op. cit., p. 342.

41 Q. Wright, "Present Status of Neutrality," loc. cit., p. 399.

42 See this JOURNAL, Vol. 35 (1941), p. 348 ff.

43 House Hearings, "Arming American Merchant Vessels," October, 1941, p. 4.

44 Q. Wright, "The Present Status of Neutrality," loc. cit., p. 399 ff.; "International Law and the World Order," in W. H. C. Laves, ed., The Foundations of a More Stable World Order, Chicago, 1941, p. 126 ff.

45 Q. Wright, "Effect of the League of Nations Covenant," American Political Science Review, November, 1919, Vol. 13, p. 562; "Present Status of Neutrality," loc. cit.

46 Neutrality has been disparaged by modern internationalists as by medieval jurists because of its destructiveness of the political and moral unity of the world community (T. A. Walker, A History of the Law of Nations, Cambridge, 1899, p. 135; Luigi Carnovale, Only by the Abolition of Neutrality Can Wars Be Quickly and Forever Prevented, 5th ed., Chicago, 1922, 1st ed., 1917; above notes 18, 39, 44, 45); by some nationalists like Machiavelli because of its inexpediency in the struggle for power (The Prince, Chap. 21); by political idealists like Mazzini because of its nullification of moral and political principles (Bolton King, Mazzini, p. 305, quoted by G. L. Beer, The English Speaking Peoples, New York, 1917, p. 134); and by poets and theologians because it gives evidence of the deadly sin of indolence and slothfulness attributed to the Laodiceans (Revelation, Chap. 3, par. 14, 16). Dante was shocked at "that caitiff choir of the angels who were not rebellious, nor were faithful to God, but were for themselves"; neither heaven nor hell would have them, without hope of death, mercy and justice disdained them, all ignored them (Inferno, canto 3, lines 37-50). Milton showed his contempt for the fallen Archangel Belial who "with words clothed in reason's garb, counselled ignoble ease and peaceful sloth, not peace" (Paradise Lost, II, lines 228-229). To similar effect see Kipling's Tomlinson, and Theodore Roosevelt, America and the World War, New York, 1915, p. 277.

47 Harvard Research in International Law, Draft Convention on Aggression, this JOURNAL, Supp., Vol. 33 (1939), p. 871 ff.; Commission to Study the Organization of Peace, Preliminary Report, International Conciliation, No. 369, April, 1941, pp. 201, 468 ff.

48 T. E. Holland, Jurisprudence, 11th ed., London, 1910, p. 399.