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Neutrality Laws of the United States

Published online by Cambridge University Press:  12 April 2017

Edward Dumbauld
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Extract

The so-called “neutrality laws” of the United States are statutory provisions, a part of the penal law of the United States, and should be clearly distinguished from the obligations imposed upon the United States by interyt national law. They may be regarded as an instance of the enforcement of international law by municipal law in the United States, and originated in the endeavors of the administration of President Washington to discharge the duties owed by the American Government as a neutral nation during the war between England and France in 1793. They punish criminally the commission of acts forbidden by the law of nations. As was well said by the Joint State and Navy Neutrality Board in 1916, “The doer of the wrongful act is accountable only to the United States, while the United States is itself accountable to a foreign government for the commission of the act. In this respect the neutrality laws differ from ordinary penal statutes, because the prohibited acts affect the international relations of the United States in addition to any effect they may have upon domestic tranquillity and order.”

Type
Research Article
Information
American Journal of International Law , Volume 31 , Issue 2 , April 1937 , pp. 258 - 270
Copyright
Copyright © American Society of International Law 1937

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References

1 Wright, Quincy, The Enforcement Of International Law Through Municipal Law in the United States (1915), 114 ff.Google Scholar; Scott, J. B., Proc. Am. Soc. Int. Law, 1933, 16 ff.Google Scholar

2 See Thomas, Charles M., American Neutrality in 1793 (1931) Google Scholar; and Hyneman, Charles S., The First American Neutrality (1934).Google Scholar

3 Report of the Neutrality Board, Feb. 21, 1916.

4 To be found in any manual of international law, and enumerated in a document published by the Department of State in May, 1918, entitled “The Laws of Neutrality as Existing on August 1, 1914.”

5 Fenwick, , The Neutrality Laws of the United States (1913), viii Google Scholar; Moore J. B., International Law Digest, VII, 1004–1006. Cf. P. C. Jessup, American Neutrality and International Police (1928), 12; T. A. Walker, The Science of International Law (1893), 442–443; Fauchille, Trait4 de Droit international public (8 ed. 1921), II, 645; French Penal Code, §§ 84–85; Italian Penal Code, § 244; Spanish Penal Code of Sept. 8, 1928, §§ 233–234. In Great Britain such provisions have been embodied in the Foreign Enlistment Acts of 1819 and 1870, modeled on the American act. Early foreign enlistment acts were inspired not so much by the desire to enforce duties of neutrality as to avoid depletion of the nation’s man power by the enlistment of British subjects in the military service of other nations. Charles Warren, Memorandum of Law on the Construction of Section 10 of the Federal Penal Code, Washington, Govt. Printing Office, 1915.

6 Ex Parte Toscano, (1913), 208 F. 938 Google Scholar. Cf. Warren, Charles, Supplemental Brief in Support of the Power of the Executive (in the Absence of Legislation by Congress) to Prevent a Breach of International Obligations Imposed upon the United States by the Law of Nations or by Treaty. Washington, Govt. Printing Office, 1915.Google Scholar

7 Report of Attorney General Gregory, 1915, 44–45: “While most of these cases were not brought under the neutrality statutes proper, in part, at least, they grow out of the obligations of the United States with respect to neutrality.” Charges included: conspiracy to defraud the United States in obtaining passports for Germans, unlawful transportation of explosives in interstate commerce, perjury in making statements before a Grand Jury regarding the Lusitania’s armament, etc. Cf. Report, 1916, 52-54.

8 Fenwick, , op. cit., 133; Attorney General Gregory’s Annual Report (1916), 13: “The present laws relating to neutrality are clearly defective. In some cases, no statutory provision whatever is made for the observance of obligations imperatively imposed by international law upon the United States; in other cases inadequate provision is made.” Google Scholar

9 Former Assistant Attorney General Warren, Charles, “Troubles of a Neutral,” 12 Foreign Affairs (No. 3, April, 1934), 377-394, at 378.Google Scholar

10 But the Act of June 15, 1917, applies only in case of international war, while the recent arms embargo legislation of 1935 and 1936 requires not only the existence, but the proclamation, of war. On the other hand, the Joint Resolution of Jan. 8, 1937, applies only to the civil war now raging in Spain. It is obvious that neutrality in the sense of international law is not involved in such a case unless the combatants shall have been recognized as belligerents; and the expression “neutrality legislation,” as applied to that enactment, is purely a term of convenience.

11 The leading case is The Three Friends (1897), 166 U. S. 1, reversing Judge Locke’s opinion below, 78 F. 175. The same view was taken in Wiborg v. United States (1896), 163 U. S. 632, and in United States v. O’Sullivan (1851), 27 Fed. Cas. No. 15, 974. Dicta to the contrary were expressed in the Carondelet (1889), 37 F. 800; the Conserva (1889), 38 F. 431; United States v. Trumbull (1891), 48 F. 99; and the Itata (1893), 56 F.505.

12 3 Op. 177, 178.

13 21 Op. 267, 270.

14 (1915) 228 F. 77, 79.

15 Bayard to Valera, July 31, 1885, For. Rel. 1885, 776.

16 18 The Three Friends (1896), 166 U. S. 1, 52.

17 United States v. Arjona (1886), 120 U. S. 479, 484.

18 (1851), 27 Fed. Cas. No. 15,974, p. 376.

19 In his charge to the jury in Henfield’s case, Justice Wilson pointed out that individual acts of war would lead to reprisals against the nation, as well as civil disunion. “If one citizen of the United States may take part in the present war, ten thousand may. If they may take part on one side, they may take part on the other; and thus thousands of our fellow-citizens may associate themselves with different belligerent powers, destroying not only those with whom we have no hostility, but destroying each other… . As a citizen of the United States, he was bound to act no part which could injure the nation; he was bound to keep the peace in regard to all nations with whom we are at peace.” U. S. v. Henfield (1793), 11 Fed. Cas. No. 6,360, pp. 1119–1120. Cf. Iredell’s charge to the grand jury in North Carolina, June 2, 1794 (G. J. McRee, Life and Correspondence of James Iredell, 1858, II, 410–411): “As the Constitution of the United States intrusted the Congress alone with the authority of declaring war, or permitting any inferior species of hostility, it was evident that until they exercised such an authority, it was the duty of all citizens of the United States to remain in a state of peace and neutrality with all the hostile powers… . None can deny that if one citizen could take a part in the war, all might. Suppose such an event. We should then present the ridiculous and contemptible spectacle to the world, of the officers of our government, in their official transactions, bound to a strict neutrality, and the people themselves, by whose authority and on whose behalf they act, individually engaged on one side or the other … for a foreign quarrel … thus cutting one another’s throats.” Judge Iredell (p. 423) stated that his doubts whether a prosecution would lie in the absence of statute had been removed by the able arguments in an important case (U. S. v. Henfield).

20 Jefferson to Mr. Morris, Minister to France, Aug. 16, 1793, For. Rel. 1, 168; Moore, Digest, VII, 917.

21 Richardson’s Messages and Papers of the Presidents, I, 361; Moore, Digest, VII, 1011.

22 Robertson, William S.,“Francisco De Miranda and the Revolutionizing of Spanish America,” Annual Report of the American Historical Association for the year 1907, 60th Cong., 2d Sess., H. Doc. 1282, Vol. 1, 364.Google Scholar

23 Cushing, Caleb, The Treaty of Washington (1873), 178.Google Scholar

24 Wharton’ s State Trials, 49; 11 Fed. Cas. No. 6, 380 (1793). Wilson charged the Grand Jury on July 22, and also delivered the charge at Henfield’s trial.

25 (1812) 7 Cranch. 32. There was a conviction at common law in United States v. Ravara (1794), 27 Fed. Cas. No. 16,122a.

26 251 Stat. 381.

27 1 Stat. 520.

28 (1818) 3 Wheat. 246.

29 United States v. Burr (1806), 25 Fed. Cas. No. 14,692. United States v. Burr (1807), 25 Fed. Cas. No. 14,694.

30 United States v. Smith and Ogden (1806), 27 Fed. Cu. No. 16,341a-16,342b.

31 Dana’s Wheaton, Elements of International Law (8th ed. 1866), Sec. 439, note, p. 559.

32 3 Stat. 370.

33 3 Stat. 447.

34 U.S.C.A. Title 18, Secs. 21–30. The Act of 1818 prohibits acceptance and exercising of foreign commissions by American citizens within the United States; enlisting or hiring others to enlist or leave the country with intent to be enlisted; fitting out or arming vessels to be employed in the service of any foreign prince or state or of any colony, district or people, to cruise or commit hostilities against the subjects, citizens or property of any foreign prince or state or of any colony, district or people with which the United States is at peace; increasing or augmenting the force of a foreign warship; beginning or setting on foot or providing or preparing the means for a military expedition or enterprise to be carried on from the United States against the territory of such a foreign state with which the United States is at peace.

35 5 Stat. 212.

36 Curtis, Roy E., “The Law of Hostile Military Expeditions as Applied by the United States,” this JOTIRNAL, Vol. 8 (1914), 1-37, 224-255.Google Scholar

37 34th Cong., 1st Sess., S. Ex. Doc. No. 35.

38 Modification of the neutrality laws was opposed by George Bemis, American Neutrality: Its Honorable Past, Its Expedient Future (1866).

39 Besides the cases cited in note 11, supra, see The Florida (1871), 4 Benedict 452; The Mary N. Hogan (1883), 18 F. 529; The City of Mexico (1885), 24 F. 33; The City of Mexico (1886), 28 F. 148; U. S. v. Robert and Minnie (1891), 47 F. 84; U. S. v. Pena (1895), 69 F.983; U. S. v. Hart (1896), 74 F. 724; U. S. v. O’Brien (1896), 75F. 900; U. S. v. Nunes (1896), 82 F. 599; U. S. v. Hart (1897), 78 F. 868, affd. 84 F. 799 (1898); U. S. v. Murphy (1898), 84 F. 609; The Laurada (1898), 85 F. 760, affd. 98 F. 986 (1900), affd. 183 U. S. 694 (1902).

40 30 Stat. 739. This resolution contained no penal clause. A proclamation was issued by President Theodore Roosevelt on Oct. 14, 1905, affecting the Dominican Republic.30 Stat. 3183.

41 37 Stat. 630.

42 The Department of State seems to have followed the policy of helping established governments against revolutionists by the imposition of embargoes affecting only shipments to the insurgent forces. Instead of being “neutral” the United States even sold arms itself to the established Mexican Government when Charles Evans Hughes was Secretary of State, while prohibiting export to the revolutionists. See Joseph P. Chamberlain, “ The Embargo Resolutions and Neutrality,” International Conciliation pamphlet No. 251 (1929), 275–276.

43 Cf. Ex Parte Orozco (1912), 201 F. 106.

44 See United States v. Tauseher, (1916), 233 F. 597; United States v. Sander (1917), 241 F. 417; United States v. Ram Chandra (1917), 254 F. 635; Jacobsen v. United States (1920),272 F. 399.

45 (1915) 228 F. 77.

46 Cf. Warren, Memorandum of July 30, 1915 (cited, note 5, supra), 26–29.

47 The Act of May 7, 1917, 40 Stat. 39, amended Sec. 10 of the Criminal Code to permit enlistment within the United States of nationals of a country engaged in war with a country with which the United States is at war.

48 Recommendations by the Attorney General for Legislation Amending the Criminal and Other Laws of the United States with reference to Neutrality and Foreign Relations, Govt. Printing Office, 1916; Report of the Attorney General, 1916, 12–l22.

49 40 Stat. 222. This Act authorizes detention of vessels about to carry fuel, arms, ammunition, men, supplies, despatches or information to a foreign belligerent warship in violation of the laws, treaties, or obligations of the United States under the law of nations; detention of American-owned ships suitable for warlike purposes until satisfactory proof is furnished that no such use will be attempted; prohibits departure of vessels equipped for war with intention or under agreement to employ them in belligerent service, and enticing in terned persons to attempt to escape.

50 38 Stat. 1226.

51 42 Stat. 361.

52 Embargoes were proclaimed affecting Mexico (July 12, 1919, 41 Stat. 1762; Jan. 7, 1924, 43 Stat. 1934), China (March 4, 1922, 42 Stat. 2264), Honduras (March 22, 1924, 43 Stat. 1942, see also proclamation of May 15, 1924, 43 Stat. 1942), Cuba (May 2, 1924, 43 Stat. 1946; June 29, 1934, 49 Stat. Proc. 1), Nicaragua (Sept. 15, 1926, 44 Stat. 2625), and Brazil (Oct. 22, 1930, 48 Stat. 3063). See 12 Foreign Affairs (1934), 648.

53 At the special session of the 73d Congress. See 12 Foreign Affairs (1934), 649–652.

54 48 Stat. 811.

55 “ The resolution did not prohibit the export of arms and munitions of war to Bolivia and Paraguay, but merely prohibited their sale within the United States to the two countries or to persons acting in their interest. This technicality was resorted to in consequence of treaties of 1858 and 1859 with Bolivia and Paraguay, respectively, providing that neither party should prohibit the export or import of arms to the other.” This JOURNAL, VOL 28 (1934), 537.

56 48 Stat. 1744-5. By proclamation No. 2147, Nov. 14, 1935, the embargo was lifted.

57 No. 98, October Term, 1936, decided Dec. 21, 1936. 299 U. S. See decision in this JOURNAL, infra, p. 334.

58 Charles Warren, “Troubles of a Neutral,” 12 Foreign Affairs (April, 1934), 377–394. Mr. Warren himself raised the question whether the price of neutrality would not be too high, and whether it would not be wiser to employ all practicable means to prevent wars (p. 394).

59 See, for example, the report of the Nye Committee investigating the munitions industry, 74th Cong. Sen. Rep. No. 944, and popular books such as H. C. Engelbrecht, Merchants of Death (1934); George Seldes, Iron, Blood, and Profits (1934); Robert Neumann, Zaharoff (1935).

60 Philip, C. Jessup, Neutrality: Today and Tomorrow (1936), 52Google Scholar.

61 Thus proposals were made to prohibit travel by Americans on vessels of belligerent nations, and to withhold passports from Americans wishing to visit war zones. But for more potent conflicting policies in favor of freedom of speech, it might be proposed that discussion of foreign affairs be prohibited, when friction or bad feeling is apt to be engendered by the heated contentions of partisans of one national group or another.

It will readily be seen that provisions of this sort rest on a basis entirely different from that underlying an embargo on arms. Such an embargo, permitted, but not required, by international law, is justified morally and logically as a matter of national policy by the simple proposition that a nation which furnishes, or permits its citizens to furnish, the instrumentalities without which warfare could not be carried on is just as guilty of causing war as the nations which make use of them. For a peace-loving people to supply other nations with weapons without which they could not fight, and thereby to enable them to wage war, would be a course of conduct altogether illogical and dishonorable. Cf. John W. Davis, in 7 Foreign Affairs (April, 1929), at 353.

62 For a judicious evaluation of proposals for a policy of maintaining neutrality and keeping out of war by making concessions to belligerents, see John Dickinson, “Neutrality and Commerce,” Proc. Am. Soc. Int. Law, 1935, 108–118, especially 110-11, 114-5; Henry, L. Stimson, “Neutrality and War Prevention,” ibid., 121–129 Google Scholar. Like those who, according to the Roman poet, gave up for life’s sake that which makes life worth living, a nation might for neutrality’s sake, as the result of repeated concessions to belligerents, lose that which makes neutrality valuable and desirable.

63 49 Stat. 1081, containing detailed provisions dealing with prohibition and licensing of exportation of arms, and with vessels carrying arms; prohibiting entrance or departure of foreign submarines, or travel by Americans except at their own risk on vessels of belligerents, after proclamation to that effect by the President.

64 74th Cong. Pub. No. 74, amending the Joint Resolution of Aug. 31, 1935, by extending its effective date until May 1, 1937, and making mandatory issuance of proclamation by the President prohibiting export of arms on outbreak of war; and prohibiting sale of securities of or loans or credits to belligerent countries or on their behalf; and providing that the Act shall not apply to American republics at war with non-American states unless cooperating with a non-American state in such war.

65 Adoption of such a policy with regard to domestic legislation is not really inconsistent with diplomatic insistence that as a matter of international law the traditional American position upholding extensive neutral rights is sound. Not all that is lawful is expedient, and a nation may well impose upon its citizens restraints which it is not obliged by international law to ordain. Thus a parent may forbid a child to play in the street or in a neighbor’s garden, and punish disobedience, without forfeiting or relinquishing any rights or claims arising out of injuries to the disobedient child inflicted by a negligent motorist or the neighbor’s.savage dog. Similarly a prudent automobilist upon meeting a road-hog may well turn aside and yield his right of way without being deemed to have admitted that the other driver’s pretensions are well founded.

66 See 36 Columbia Law Review (1936), 105–144, regarding recent legislation.

67 Oct. 5, 1935, No. 2141; Feb. 29, 1936, No. 2159; revoked by No. 2179, June 20, 1936, 1 Fed. Reg. 753.

68 Oct. 5, 1935, No. 2142; revoked by No. 2180, June 20, 1936, 1 Fed. Reg. 754.

69 Pub. No. 1, 75th Cong.

70 See Congressional Record, Jan. 6, 1937; New York Times, Jan. 7, 1937. Thus, although Congress did not act with sufficient speed to prevent the Mar. Cantabrico from sailing with its cargo under a license issued to Robert Cuse, president of the Vimalert Co. of Jersey City, future shipments thereunder, as well as under the license issued to Richard L. Dinely of San Francisco, were banned. The latter announced that he supposed the business would now go to Japanese competitors. The Mar Cantabrico was later reported sunk.

71 Which the participants do not acknowledge as amounting to “ war,” such as the hostilities between Japan and China in Manchuria.