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The Lend-Lease Bill and International Law

Published online by Cambridge University Press:  12 April 2017

Quincy Wright
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Type
Editorial Comment
Information
American Journal of International Law , Volume 35 , Issue 2 , April 1941 , pp. 305 - 314
Copyright
Copyright © American Society of International Law 1941

References

* The Act is printed in the Supplement to this Journal, p. 76.

1 See especially remarks of Senator Burton K. Wheeler, of Montana, Cong. Record, March 1, 1941, daily edition, p. 1647.

2 See especially remarks of Senator Alben Barkley, of Kentucky, ibid., Feb. 17, 1941, p. 1080.

3 It has been held that the President has authority to direct the armed forces in time of peace and war (Ex parte Milligan, 4 Wall. 2,1866); to utilize these forces for the protection of citizens abroad (Durand v. Hollins, 4 Blatch. 451, 454, 1860; Fed. Cas. No. 4186); to recognize a state of war against the United States by the act of another power (The Prize Cases, 2 Black, 635,638,1862); to recognize the existence of foreign war (The Divina Pastora, 4 Wheat. 52, 1819); to dispose of military and naval material in the interest of American defense (Op. Att. Gen. Jackson, August 27, 1940, this Journal, Vol. 34 (1940), p. 731; James G. Harbord, The American Army in France, 1917–1919 (Boston, 1936), p. 536; Act March 2,1919, 40 Stat. Pt. 1,1273, Sec. 3); to be the sole agency of official communication with foreign governments (United States v. Curtiss-Wright Corporation, 299 U. S. 304, 1936); and to recognize foreign states and governments (Rose v. Himely, 4 Cranch, 239, 272,1808; Kennett v. Chambers, 14 How. 38,1852; J. B. Moore, Digest of International Law (Washington, 1906), Vol. 1, p. 243). See also, Q. Wright, The Control of American Foreign Relations (New York, 1922), pp. 267 ff., 285–319.

4 Particularly statutes imposing certain restrictions in regard to the disposal of army and naval material (Act of March 3, 1883, Sec. 5, U. S. Code, Tit. 34, Sec. 492; Act of June 28, 1940, Sec. 14 (a)) and to the construction for a belligerent of military or naval material in the United States. (Act of June 15, 1917, 40 U. S. Stat. 221; U. S. Code, Tit. 18, Sec. 33; Deák and Jessup, Neutrality Laws, Regulations and Treaties (Washington, 1939)„ Vol. 2, p. 1092.) See Q. Wright, “The Transfer of Destroyers to Great Britain,” this Journal, Vol. 34 (1940), p. 680 ff.

5 The Act is somewhat inconsistent. Article 6 (a) “hereby authorizes to be appropriated from time to time, out of any money in the Treasury not otherwise appropriated, such amounts as may be necessary to carry out the provisions and accomplish the purposes of this Act.” This would permit expenditures to be contracted to be later met by deficiency appropriations. Article 3 (a), however, permits the manufacture and procuring of war supplies for foreign governments only “to the extent to which funds are made available therefor, or contracts are authorized from time to time by the Congress, or both.” A $7,000,000,000 appropriation bill to implement the Act was introduced on March 12, 1941, and approved on March 27.

6 Especially provisions requiring certain conditions in the contracts for disposing of materials (Sees. 4, 7); requiring reports by the President at least every ninety days on the operations under the Act, Sec. 5 (b), and providing for termination of the exercise of the powers dealt with in the Act by June 30, 1943 or earlier if so ordered by “concurrent resolution” of Congress. The latter provision appears to be unconstitutional because the President cannot be deprived of the veto given him with respect to all Congressional “orders, resolutions or votes” by Art. I, Sec. 7, CI. 3 of the Constitution, and Congress cannot delegate legislative power. Congress can provide for the termination of legislation at a future date or on the occurrence of an event of a type other than a political decision. It appears, however, that a “declaration that the powers conferred by or pursuant to subsection (a) are no longer necessary to promote the defense of the United States” is not a finding of fact but a political decision. Power to make such a decision belongs to the President or to Congress and cannot be delegated by Congress to a body unknown to the Constitution such as the two Houses of Congress acting in a manner not permitted by the Constitution. See Q. Wright, “The Power to Declare Neutrality under American Law,” this Journal, Vol. 34 (1940), p. 307 ff. It was probably because it realized the unconstitutionality of this provision that the Senate added an amendment providing: “If any provision of this act or the application of such provision to any circumstance shall be held invalid, the validity of the remainder of the act and the applicability of such provision to other circumstances shall not be affected thereby” (Sec. 11).

7 If an act changes the legal position of others in accordance with the intention of the actor, the actor has exercised a legal power.

8 If an act is not in violation of any legal obligation of the actor and the actor does not incur any legal liability, the actor has exercised a legal freedom or liberty. This conception embraces both legal privileges and legal immunities.

9 If others are obliged not to interfere with an act, the actor has a legal right. The meaning of these terms is discussed by Hohfeld, Fundamental Legal Conceptions, New Haven, 1923; Kocourek, Jural Relations, Indianapolis, 1927; Q. Wright, Mandates Under the League of Nations, Chicago, 1930, p. 286 ff.

10 A landlord, for instance, has under common law the power to revoke a license to use his land but he is not free to exercise this power if it would be in breach of a contract. In that case the license would be ended, but the licensee would have an action for damages. (See J. W. Salmond, Jurisprudence, London, 1902, p. 234; Kerrison v. Smith (1897), 2 Q. B. 445; Wood v. Leadbetter (1845), 13 M. and W. 855.

11 As, for instance, by defining the territorial limits of the United States, by determining who are American citizens, by declaring war against another country, or by enacting laws concerning interests abroad or on the high seas.

12 Congress alone can appropriate money, raise, organize and regulate the army and navy, and provide for calling out the militia.

13 Art. II, Sec. 3. It is the President’s constitutional duty to protect the rights of citizens abroad (The Slaughter House Cases, 16 Wall. 36, interpreting XlVth Amendment) and to defend the territory against invasion or dismemberment (The Prize Cases, 2 Black (1862), pp. 535, 638. See In Re Neagle, 135 U. S. 1 (1890) and, supra, note 3.

14 Durand v. Hollins, 4 Blatch. 451, 454 (1860); Martin v. Mott, 12 Wheat. 19 (1827).

15 “The President is made Commander-in-Chief of the Army and Navy by the Constitution, evidently for the purpose of enabling him to defend the country against invasion, to suppress insurrection and to take care that the laws be faithfully executed. If Congress were to attempt to prevent his use of the army for any of these purposes, the action would be void.” William Howard Taft, Our Chief Magistrate and his Powers (New York, 1916), pp. 128–129.

16 Q. Wright, Control of American Foreign Relations, p. 375; “The Transfer of Destroyers to Great Britain,” this Journal, Vol. 34 (1940), p. 681; J. B. Moore, Proc. American Philosophical Society, Minutes, Vol. 60, p. lx.

17 77th Cong., 1st sess., Sen. Rep., No. 45, p. 4.

18 77th Cong., 1st sess., H. of R. Rep., No. 18, pp. 5–6.

19 Art. 28 provides that the convention shall not apply unless “all the belligerents are parties.”

20 Q. Wright, “The Present Status of Neutrality,” this Journal, Vol. 34 (1940), p. 401 ff.; “The Transfer of Destroyers to Great Britain,” ibid., p. 685 ff.

21 Lend-Lease Bill, Hearings before the Committee on Foreign Relations, House of Representatives, 77th Cong., 1st sees., on H. R. 1776, Washington, 1941, p. 7.

22 Ibid., pp. 103–104.

23 Cong. Record, Feb. 24, 1941, daily edition, pp. 1354–5, 1361.

24 Ibid., p. 1360.

25 T. A. Walker, A History of the Law of Nations (Cambridge, 1899), pp. 135, 196–197; Grotius, De jure belli ac pads, III, c. 17, sec. 3.

26 Bynkershoek, Quaestionum juris publici libri duo, c. 9, Carnegie ed., p. 63; Vattel, Le droit des gens, III, c. 7, Sees. 105, 106, Carnegie ed., pp. 268–269.

27 J. B. Moore, Digest of International Law, Vol. 5, p. 591 ff.

28 The United States abandoned impartiality in the Non-Intercourse Acts of 1809–1811, Deák and Jessup, op. cit., Vol. 2, p. 1160 ff.

29 See Preamble to XIII Hague Convention, 1907, par. 6, and Harvard Research in International Law, Draft Convention on Rights and Duties of Neutral States in Naval and Aërial War, Arts. 13, 14, this Journal, Supp., Vol. 33 (1939), pp. 316–334.

30 See Acts of Guatemala, Salvador, and Uruguay, Naval War College, International Law Documents, 1917, pp. 16, 210, 249; Harvard Research in International Law, Draft Convention on Aggression, this Journal, Supp., Vol. 33 (1939), p. 880 ff.

31 H. Lauterpacht, Neutrality and Collective Security, Politica, 1936, p. 149; Q. Wright, “The Present Status of Neutrality,” this Journal, Vol. 34 (1940), p. 391.

32 P. C. Jessup, The United States and the Stabilization of Peace (New York, 1935), p. 132 ff.

33 International Law Association, Report of 38th Conference, Budapest, London, 1935, p. 66 ff.; this Journal, Supp., Vol. 33 (1939), p. 823 ff.

34 Q. Wright, The Future of Neutrality, International Conciliation Pamphlet, Sept., 1928, No. 242; E. M. Borchard and W. P. Lage, Neutrality for the United States (New Haven, 1937), pp. 281, 296, 305.

35 Eugene Staley, Raw Materials in Peace and War (New York, 1937), p. 40; Q. Wright, “The Present Status of Neutrality,” this Journal, Vol. 34 (1940), pp. 393–394.

36 Francis Dealt, The United States Neutrality Acts, Theory and Practice, International Conciliation Pamphlet, March, 1940, No. 358.

37 Alsop and Kintner, American White Paper (New York, 1940), p. 39 ff.

38 Q. Wright, “The Transfer of Destroyers to Great Britain,” this Journal, Vol. 34 (1940), p. 680 ff.; H. W. Briggs, “Neglected Aspects of the Destroyer Deal,” ibid., p. 569 ff.; Edwin Borchard, “The Attorney General’s Opinion on the Exchange of Destroyers for Naval Bases,” ibid., p. 690 ff.; C. G. Fenwick, “Neutrality on the Defensive,” ibid., p. 697 ff.

39 Department of State Bulletin, May 25,1940, Vol. 2, p. 568; Q. Wright, “The Transfer of Destroyers to Great Britain,” ibid., p. 687.

40 This Journal, Supp., Vol. 34 (1940), p. 1 ff.; Q. Wright, “Rights and Duties under International Law,” ibid., p. 245 ff.

41 Act of Habana on administration of European colonies, this Journal, Supp., Vol. 35 (1941), p. 18 ff.

42 The Acts of 1912 and 1922 permitted discrimination in the application of embargoes in cases of domestic violence in American countries and countries in which the United States enjoys extraterritoriality. Discrimination between a recognized government and insurgents has, however, been the usual practice.

43 Q. Wright, “The Present Status of Neutrality,” this Journal, Vol. 34 (1940); International Law and the World Order, in W. H. C. Laves, ed., The Foundation of a More Stable World Order (Chicago, 1941), p. 107 ff.