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Published online by Cambridge University Press: 02 September 2013
The first session of the Seventy-fourth Congress saw the introduction of at least half a dozen measures dealing with the policy of the government toward belligerents in a war in which the United States is not a party. The President announced his interest in the problem, and the State Department was concerned with drafting legislation which was discussed with the Senate Committee on Foreign Relations. The question will undoubtedly again be before the Congress at its next session.
1 New York Herald-Tribune, May 8, 1935; New York Times, Aug. 13, 1935.
2 New York Times (Dec. 16, 1934), 1: 6; (Dec. 18, 1934), 5: 1, 3, and 20: 5; (March 26, 1935), 11:3 ; (March 27, 1935), 21:1.
2a This article was written during the early summer of 1935. Man. Ed.
3 SirGrey, Edward, Twenty-Five Years (New York, 1925), Vol. 2, p. 110Google Scholar.
4 Treaty Series, No. 756. Cf. comments, 21 Am. J. Int. Law (1927), 542, 764Google Scholar.
5 Millis, W., The Road to War (Boston, 1935)Google Scholar; Clapp, E. J., Economic Aspects of the War (New Haven, 1915)Google Scholar; Grattan, C. H., Why We Fought (New York, 1929)Google Scholar.
6 Cf. the notes of Jan. 19, 1915, and Jan. 29, 1915, respectively from and to Germany, concerning the non-contraband character of hydroaëroplanes under a strict interpretation of Article 8 of the Thirteenth Convention of the Second Hague Conference of Oct. 18, 1907. 9 Am. J. Int. Law, Special Number (Diplomatic Correspondence) (1915), 366–368.
7 The Neutrality Laws of the U. S. (Washington, Carnegie Endowment, 1913), 11–12Google Scholar. Cf. also 42 Yale L. J. (1932–33), 1109, 1119–1120; Woolsey, L. N., in Proc. Am. Soc. Int. Law (1935), 72, 75Google Scholar.
8 Cf. especially the speeches of Senators Gore, Clark, Borah, and Stone, and Norris and Sutherland (contra) on the Gore resolution (64: 1 S. Res. 14), 53 Cong. Record (March 1–7, 1916), 3405–12, 3463–87, 3514–19, 3598–99, 3660–64; and debates on the McLemore resolution (64: 1 H. Res. 147), 53 Cong. Record (March 6–7, 1916), 3634–46, 3688–3720. Cf. Curti, M. E., Bryan and World Peace (Northampton, 1931), 237 ff.Google Scholar; Millis, op. cit., 72 ff. During the neutrality period (1914–17), many bills and resolutions were introduced looking toward the principles discussed below —embargoes on munitions and contraband, war-zone travel, American merchant shipping restriction to non-munitions cargoes, etc. Cf. 64: 1 H. Res. 25, 357 (embargoes), 53 Cong. Rec. (1915-16) 13,029, App. 934; others looked to a declaration of peace policy (cf. sees. 1–2 of the Maverick resolution below. 74: 1 H. J. Res. 259). Cf. 64: 1 H. J. Res. 170, 53 Cong. Record (March 6, 1916), 3638Google Scholar.
The question of the constitutional basis of neutrality laws (if considered municipal) need not be discussed at length. There has been relatively little analysis of the problem. Besides the power “to define and punish offenses against the laws of nations,” it may, from a domestic viewpoint, be based on the war and commerce powers. As to the former, cf. speech of Sen. Gore, 53 Cong. Record, 3409; U. S. v. Brigantine William, opinion of J. Davis, U. S. Dist. Court, Salem, Mass. Sept. term 1808 (Worcester, 1808), 56. The case was cited as authority for congressional imposition of an embargo by Hughes in University of Illinois v. U. S., 289 U. S. (1933), 56 In the principal case, Judge Davis said: “It seems to have been admitted … that state necessity might justify a limited embargo on suspension of all foreign commerce; but if the Congress have power, for purposes of safety of preparation or counteraction, to suspend commercial intercourse with foreign nations, where do we find them limited as to the duration, more than as to the manner and extent, of the measure?” On several occasions in periods of foreign war, embargoes have in the past been placed on exports of munitions. Cf. the acts of May 22, 1794 (1 Stat. at L. 369), June 14, 1797, and April 7, 1798 (ibid., 520, 549), June 13, 1798 re France (ibid., 565). As to the international aspect of an embargo in these circumstances, cf. Hyde, C. C., International Law (Boston, 1922), Vol. 2, p. 183Google Scholar: “A state may place a pacific embargo on the produce of its soil or the output of its factories, and that for the purpose of preserving what is detained for domestic use, or for preventing its employment in a foreign state or group of states.” Cf. Moore, 's Digest of International Law (Washington, 1908), Vol. 7, pp. 148–151Google Scholar; Hyneman, C. S., The First American Neutrality (Urbana, 1935), 148Google Scholar, and authorities cited.
As to the commerce power as a source of constitutional authority, the attitude of the United States toward the convention of June 17, 1925, on traffic in arms is instructive. Prior to the Roosevelt administration, the constitutional incapacity of the United States under the commerce clause to regulate exports had been alleged as the reason for the failure of the United States to ratify the convention. This incapacity is apparently avoidable, for on May 29, 1934, the American delegate to the Disarmament Conference announced that the United States would ratify such a convention. Cf. U. S. State Dept. Press Releases (weekly issue no. 244, June 2, 1934), 330; U. S. Draft Treaty. The decision in Missouri v. Holland (252 U. S. 416, 1919) appears broad enough to include the application of embargoes, especially if made in conformity with an international convention. Cf. the dictum of the Court in Wisconsin v. Illinois (278 U. S. 363, 1928).
9 Cf. the debates cited in note 8, especially the speeches of Senators McCumber and Colt at p. 3517, Clarke at pp. 3468–69, Sherman at p. 3475, and Representative Sherley at p. 3717. Contra, Representative Foss at p. 3716; notes of United States to Germany and to Austria-Hungary, April 21 and Aug. 12, 1915, 9 Supplement An. J. Int. Law (1915), 127, 166Google Scholar.
10 International Law (7th ed., New York and Oxford, 1917), §225, p. 654Google Scholar, note 1.
11 Op. cit., 12.
12 Ibid., notably in the Alabama Claims arguments. The argument of the United States was answered by Great Britain on two grounds: “first, that even on the assumption that municipal laws of that character were founded upon conceptions of international obligation, the state should still be judged by the actual law of nations and not by its conception of that law, and secondly, that the assumption was not a true one, since municipal laws, being enacted primarily to secure the interests of the state itself, may frequently prohibit, for reasons of expediency, acts not prohibited by the law of nations.” (Quoted from Fenwick, 12.)
13 Cf. the reservation to the United States Draft Statute on the Traffic in Arms of Nov. 20, 1934, in the amendments submitted by the State Department on March 2, 1935, to Articles 2 and 16. Part of the first reads: “Nothing in this convention shall be construed as an obligation … to permit or prevent the export or transit, in time of war, for the use of either belligerent, of arms and implements of war. Nor shall the permitting or preventing … be considered an unneutral act.” New York Times (March 3, 1935), 6Google Scholar: 1. Cf. Pan-American Convention on Maritime Neutrality, Feb. 20, 1928 (6th Int. Conference of American States, Final Act, p. 157), Art. 22: “Neutral states are not obliged to prevent the export or transit at the expense of any one of the belligerents of arms,” etc. Cf. Articles 15, 16. Cf. LN (1935) IX6. p. 44, for a similar Italian reservation to the League of Nations Draft Convention, July 23, 1934. Oppenheim, L., International Law (New York, 1906), 1st ed., Vol. 2, §350, p. 379)Google Scholar: “The profit derived from such supply being enormous, the members of the family of nations are not inclined to cripple the trade of their subjects by preventing it. And belligerents want to have the opportunity of replenishing with arms and ammunition if they run short of them during war. The question is merely one of the standard of public morality. If this standard rises and it becomes the conviction of the world at large that supply of arms and ammunition by subjects of neutrals is apt to lengthen wars, the rule will appear that neutrals must prevent such supply.” Cf. the speeches on the Gore and McLemore resolutions cited above, note 8. For historical examples of embargoes on munitions, cf. Woolsey, L. H., “The Burton Resolution on Trade in Munitions of War,” 22 Am. J. Int. Law (1928), 610CrossRefGoogle Scholar; Butler, and Maccoby, , The Development oj International Law (New York, 1928), 243 ff.Google Scholar; Jessup, and Deak, , “The Development of the Law of Contraband,” 47 Polit. Sci. Quar. (1932), 526CrossRefGoogle Scholar; 48 ibid. (1933), 62, 333. The opposite rule still governs the practice of states (and thus becomes accepted as the standard of a “rule” of international law), as illustrated by the reservation of the United States to the Draft Statute cited above. Cf. also note of the United States to Austria-Hungary Aug. 12, 1915,9 Supplement Am. J. Znt. Law (1915), Special Number, 166.
14 Cf. 74 Cong. Record (1930–1931), 5672–78Google Scholar, H. R. 6517, the only one of several bills actually debated. This did not include the phrase “directly or indirectly,” but a draft bill was prepared in which the words were inserted, without definition. It is evident that from the point of neutral trade, the question becomes important: the extension of the area and incidence of blockade, of the doctrines of contraband and continuous voyage made in the World War offer many examples of controversy over the problem between neutral and belligerent. Cf. Garner, J. W., Prize Law During the World War (New York, 1927)Google Scholar. And even within the belligerent countries British goods reached German hands in substantial quantities, and there were no doubt other “leakages.” Cf. Consett, and Daniel, , The Triumph of Unarmed Forces (New York, 1923), Chap. 11Google Scholar; Engelbrecht, and Hanighen, , Merchants of Death (New York, 1934), 163 ff.Google Scholar
15 Panama Refining Co. v. Ryan, 293 U. S. 388 (1935); Schechter Poultry Co. v. United States, 295 U.S. 495 (1935).
16 “The policy of the United States in 1793 constitutes an epoch in the development of the usages of neutrality. There can be no doubt that it was intended and believed to give effect to the obligations then incumbent upon the neutrals. But it represented by far the most advanced existing opinions as to what those obligations were; and in some points it even went further than authoritative international custom has up to the present time advanced. In the main, however, it is identical with the standard of conduct which is now adopted by the community of nations.” Op. cit., 632.
17 Savage, C., Policy of the United States Toward Maritime Commerce in War Time, 1776–1914 (Washington, U. S. Department of State, 1934)Google Scholar.
18 Jennings, W. W., The American Embargo, 1807–1809 (Iowa City, 1921)Google Scholar; Sears, L. M., Jefferson and the Embargo (Durham, N. C., 1927)Google Scholar.
19 Cf. Sears, op. cit., 285, 319–320; Galpin, W. F., “The American Grain Trade Under the Embargo of 1808,” 2 J. Econ. and Business Hist. (1929–1930), 71, 99–100Google Scholar.
20 5 Stat. at L. 212 (quoted from Fenwick, 179); cf. note 2 above.
21 Fenwick, 50.
22 The joint resolution of March 14, 1912, applying only to American countries, was incorporated in the act of January 31, 1922 (42 Stat. at L. 361), which applied to any country in which the United States exercises extraterritorial jurisdiction. Cf. the joint resolution of April 22, 1898, as to export of coal or other material used in war (Woolsey, op. cit., note 13). Cf. the joint resolution of March 28, 1934 (48 Slat. at L. 811).
23 Perhaps the most comprehensive was 64:1 H. Res. 25, 53 Cong. Record (1916), App. 934. A “grass roots” representative introduced an embargo resolution “to end the war in 30 days” by prohibiting exports of foodstuffs. Cf. speech of Senator Hitchcock, 63; 3 52 Cong. Record (1914–1915), 3937–39Google Scholar, S. Res. 488, S. 6688.
24 For a recital and analysis of the resolutions introduced between 1927 and 1931, cf. Rich, and Myers, , Draft Syllabus for the Study of the Implementation of the Pact of Paris (Boston, 1931)Google Scholar. Cf. also Briggs, and Buell, , “American Neutrality in a Future War,” 11 Foreign Policy Reports (1935–1936), 26, 31–32Google Scholar; Chamberlain, J. P., “The Embargo Resolutions of Neutrality,” International Conciliation (1929), No. 259Google Scholar.
25 Burton, Korell, Fish resolutions.
26 Capper, Porter resolutions.
27 The most recent resolution, 73:1, H. J. Res. 93, has had a similar history; cf. Briggs and Buell, op. cit., note 24. For reasons which resulted in the amendment by the Senate of the House resolution to apply the embargo impartially instead of against the aggressor, cf. 73:1, H. J. Res. 93, Hearings, H. R. Com. on Foreign Affairs (Washington, 1933); House Report, No. 22; Senate Report 101; 77 Cong. Record (1933), 1670–1702, 1850Google Scholar; 73:2, 78 Cong. Rec. (1934), 3390Google Scholar.
28 Warren, C., “Contraband and Neutral Trade,” Proceedings Acad. Polit. Sci. (1935), 61Google Scholar.
29 Garner, op. cit., Chaps. 13–14. The interest in restatement of the laws of neutrality is perennial: cf. 70:1 S. Res. 157, introduced by Senator Borah in 1928 in favor of such a restatement; Borchard, E. M., in 22 Am. J. Int. Law (1928), 614CrossRefGoogle Scholar. International efforts to limit the traffic in munitions are represented by the Convention of St. Germain of September 10, 1919, and the Geneva Convention of June 17, 1925. American participation in these efforts is at present more positive; cf. notes 8, 13.
30 The first specific application of the idea of prohibiting loans by neutrals to belligerents seems to have been made as to Japan and China in 1894, at the Universal Peace Congress of that year, although war loans had been condemned by the peace group since 1849. M. E. Curti, op. cit., 141, note 95. On August 15, 1914, the Secretary of State communicated to J. P. Morgan and Co. an opinion that loans to a belligerent were inconsistent with the true spirit of neutrality; cf. Foreign Relations, 1914, Supplement, 580. But loans were later issued without interposition of the government; cf. Curti, op. cit., 193.
31 Cf. note 9 above. For a similar question in Dutch neutral diplomacy in the World War, cf. Vandenbosch, A., The Neutrality of the Netherlands During the World War (Grand Rapids, 1927), 313 ff.Google Scholar
32 Considerable effort was made on the outbreak of the World War to limit travel of Americans abroad; cf. 9 Suppl. Am. J. Int. Law (1915), Special Number 376 ff. A statement was issued on October 4, 1915, that passports would not be granted for travel in belligerent countries “merely for pleasure, recreation, touring, or sightseeing” (quoted in 53, Cong. Record (March 2, 1916, p. 3409Google Scholar). For other warnings issued officially regarding residence in areas of domestic conflict or threatened war, cf. Foreign Relations of the United States (1914), 477, 668 ff. (Mexico)Google Scholar; New York Times (July 7, 1935), 1:1 (Ethiopia)Google Scholar.
33 Cf. Vandenbosch, op. cit., 112 ff. The Netherlands government was the only one which rigidly excluded armed merchantmen from its ports as “assimilated” to war ships; cf. the Declaration of Neutrality of Aug. 5, 1914, quoted in Vandenbosch, 318. For the American position, cf. 9, 10, 11, Suppl. Am. J. Int. Law (1915–17), Special Numbers, passim. Cf. also Garner, op. cit., 398 ff. Cf. Pan American Convention on Maritime Neutrality (note 2 above), Art. 12, sec. 3, which assimilates firmed merchantmen in neutral ports to armed vessels as to stay, supplies, etc. The United States reserved this point on signature.
34 Cf. Scott, J. B., The Armed Neutralities of 1780 and 1800 (New York, Oxford. 1918)Google Scholar.
35 Butler and Maccoby, and Woolsey, op. cit., note 13.
36 42 Yale L. J. (1932–1933), 1119. note 52Google Scholar.
37 For a different view, cf. Wright, Q., The United States and Neutrality (Chicago, 1935)Google Scholar, passim.
38 Cf. Vandenbosch, op. cit., 311–312; the Russian treaties of non-aggression are interesting in this respect also; cf. Graham, M. W., “The Soviet Security System,” 23 Am. J. Int. Law (1929), 336CrossRefGoogle Scholar; also, by the same author, International Conciliation (1929), No. 252. For a general summary of Mr. Warren's position, cf. his “Troubles of a Neutral,” 12 Foreign Affairs (1933–1934), 377Google Scholar.
39 Cf. President Roosevelt's statement upon signing the bill, New York Times Sept. 1. 1935, 1:3Google Scholar.
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