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Neglected Aspects of the Destroyer Deal

Published online by Cambridge University Press:  12 April 2017

Herbert W. Briggs
Herbert W. Briggs*
Affiliation:
Of the Board of Editors
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Extract

On September 3, 1940, President Franklin D. Roosevelt sent to Congress a message in which he stated, in part:

I transmit herewith for the information of the Congress notes exchanged between the British Ambassador at Washington and the Secretary of State on September 2, 1940, under which this Government has acquired the right to lease naval and air bases in Newfoundland, and in the islands of Bermuda, the Bahamas, Jamaica, Santa Lucia, Trinidad, and Antigua, and in British Guiana; also a copy of an opinion of the Attorney General, dated August 27, 1940, regarding my authority to consummate this arrangement.

Type
Research Article
Information
American Journal of International Law , Volume 34 , Issue 4 , October 1940 , pp. 569 - 587
Copyright
Copyright © by the American Society of International Law 1940

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References

1 Tlie complete text of the message and accompanying papers is in the Congressional Record, 76th Cong., 3rd Sess., for Sept. 3, 1940, pp. 17276–17279; also in H. Doc. No. 943, 76th Congress. The Attorney General's opinion is reproduced, infra, p. 728; the message and notes in the accompanying Supplement, pp. 183, 184.

2 In view of certain recent attacks on the neutrality policy of the United States, perhaps it should be recalled that the Neutrality Act of 1939 has not been repealed, nor have the President's proclamations of neutrality been rescinded. International law recognizes no such thing as the so-called “status” of non-belligerency. “Non-belligerency” is in reality only a euphemism designed to cover violations of international law in the field of neutral obligation.

3 The writer will not attempt to discuss the larger political or strategic aspects of the deal, nor even those parts of the Attorney General's opinion which treat of the constitutional authority of the President to consummate the arrangement without the consent of Congress. The latter point is discussed elsewhere in this Journal. (See editorial comments, pp. 680, 690. The writer is aware that a lawyer will not always do more than apply a logico-grammatical interpretation to the words of a law he may be construing, but since the Attorney General, in his opinion dated August 27, interpreted the law in question within the larger frame of reference of its legislative history and the Congressional intent to implement international law, the writer will follow the same method.

4 For the detailed story, see the statements of Senator Walsh in the Senate, June 21, 1940. Congressional Record, 76th Cong., 3rd Sess., p. 13315 ff. (All references herein to the Congressional Record are to the daily edition.)

5 Ibid., pp. 13315, 13317.

6 Ibid., p. 13319.

7 Congressional Record, 76th Cong., 3rd Sess., p. 13319.

8 Cf. text of White House statement reprinted in New York Times, June 25, 1940. The statement stressed the experimental nature of the boats and the advantages to the Navy of turning in new boats before they had even been tried out. They were also criticized because they were designed to carry only 18-inch, instead of 21-inch, torpedoes, and the Navy had only a limited number of 18-inch torpedoes on hand, but the President's Secretary, Mr. Early, stated that 18-inch torpedoes could be delivered by “late Fall.” New York Times, June 20, 1940. Cf. also discussion in Cong. Rec, June 21, pp. 13320–13321.

9 Eventually the Act of June 28, 1940, Public No. 671.

10 Cong. Rec., June 21, 1940, p. 13314.

11 For the texts of Sees. 3 and 6, see below, p. 575.

12 Cong. Rec., June 21, 1940, p. 13318.

13 Cong. Rec., June 21, 1940, p. 13369.

14 Public No. 671, 76th Cong., 3d Sess.

15 Cong. Rec., June 21, 1940, p. 13371.

16 As first submitted to the Senate, the clause read: “shall first certify that such material is not essential to and cannot be used in the defense of the United States.” Cong. Rec, June 21, 1940, p. 13368.

17 H. R. 9850, which eventually became the Act of July 2,1940, Public No. 703, was passed by the Senate on June 11,1940. It should be noted that this law refers only to army equipment, not naval vessels. The pertinent provision of Sec. 1 reads that the Secretary of War is authorized “(3) to enter into such contracts (including contracts for educational orders, and for the exchange of deteriorated, unserviceable, obsolescent, or surplus military equipment, munitions, and supplies for other military equipment, munitions, and supplies of which there is a shortage), and to amend or supplement such existing contracts, as he may deem necessary to carry out the purposes specified in this section …”Cf. also the discussion of this provision in the Senate on June 11, 1940, Cong. Rec, pp. 12040–12049.

18 Cong. Rec., June 21, 1940, pp. 13369–13371. Senator Barkley made no reference to naval vessels. On the other hand, the protection of the Navy from reductions which would weaken it was the prime objective of Senator Walsh throughout the debate.

19 Cf. the statement of Senator Walsh: “We then [June 14] learned for the first time that for 3 months negotiations had been going on for the transfer or release of naval property of one kind or another … of which no member of the Congress had the slightest information or knowledge.” Cong. Rec, June 21,1940, p. 13315.Cf. also the discussion which followed. IUd., pp. 13315–13321.

Sec. 14 (b) is not in itself a restriction on the preexisting authority of the Army and Navy to dispose of certain equipment, but a study of it, and its legislative history, would have aided the Attorney General in discovering the intent of Congress in drafting Sec. 14 (a).

20 See Mr. Jackson’s instructions in three successive paragraphs to the appropriate staff officers that they not only may, but should, make the certifications as he indicates. Infra, p. 733.

21 Admiral Stark’s letter is as follows (from Cong. Rec. for Sept. 3, 1940, p. 17279):

22 Such transfers constitute a violation of the rule of international law codified in Art. 6 of Hague Convention XIII of 1907: “Art. 6.The supply, in any manner, directly or in-directly, by a neutral Power to a belligerent Power, of war-ships, ammunition, or war material of any kind whatever, is forbidden.” 36 U. S. Statutes at Large 2415.Cf. Woolsey, L. H. “Government traffic in contraband,” this Journal, Vol. 34 (July, 1940), pp. 498–503 Google Scholar.

23 Cf. Cong. Rec, June 21, 1940, pp. 13276–13277; 13318.

24 40 Stat. 217, 221; 18 U. S. C, Ch. 2, Sees. 32, 33, 36.

25 The rubric heading of this section of the United States Code reads: “Same [i.e., Enforcement of Neutrality]; sending out armed vessel with intent to deliver to belligerent nation.”

26 It was stated in Congress on April 30, 1917, that the bill was originally prepared in the Department of Justice under the direction of the Assistant Attorney General, Mr. Charles Warren. Cong. Rec., 65th Cong., 1st Sess., Vol. 55, Part 2, p. 1591. The House Committee of the Judiciary revised the phraseology submitted by the Department of Justice, but the Senate substituted its bill for the House bill. Ibid., p. 1590, and below, note 33.

27 Annual Report of the Attorney General of the United States for the Year 1916, p. 13.

28 Ibid., p. 15. Italics added. Sec. 11 of the Penal Code of 1909 is at present embodied in 18 U. S. C, Ch. 2, Sec. 23.Its provisions date back to Sec. 3 of the Act of June 5, 1794, which was designed to make unlawful the fitting out or arming of privateers with intent of use by belligerents. At that time, notes Hyde, C. C., “the sending abroad for sale of vessels adapted for hostile uses was not sought to be thwarted, because it was not believed that there existed a legal duty of prevention.” International Law Chiefly as Interpreted and Applied by the United States (1922), Vol. 2, p. 711 Google Scholar.

29 Papers relating to the Treaty of Washington, Vol. I, p. 14; H. Ex. Doc. 1, Vol. 1, 42nd Cong., 3rd Sess., 1872.

30 36 U. S. Stat. L. 2415; this Journal, Supp., Vol. 2 (1908), p. 206. See below, p. 580, for a discussion of the validity of these provisions as rules of international law.

31 Sec. 3 of Act of June 5, 1794; at present Sec. 23 of 18 U. S. C, Ch. 2.Cf. Deák, and Jessup, , A Collection of Neutrality Laws, Regulations, and Treaties of Various Countries (1939), Vol. II, p. 1080 Google Scholar. See also above, note 28.

32 Much use was made in the Burlingham letter (see below, note 85) of the fact that Mr. Gregory quoted only parts of the first part of Rule 1; but Mr. Gregory also referred to “dispatching” (the “departure” of the latter half of Rule 1), and his partial quotation was intended to explain the reason for adding to Section 3 the words “or with reasonable cause to believe that the said vessel shall or will be employed in the service of any such belligerent nation after its departure from the jurisdiction of the United States.”

33 See below, p. 586. It is interesting to note that, as passed by the House of Representatives, Sec. 3 (then numbered 503) contained no trace of ambiguity on the point we are discussing. It read: “During the existence of a war in which the United States is a neutral, it shall be unlawful for the master, owner, or person having charge of any vessel built, armed, or equipped as a vessel of war, or converted from a private vessel into a vessel of war, to send the vessel out of the jurisdiction of the United States with any intent or under any agreement or contract, written or oral, that it shall be delivered to a belligerent nation, or to an agent, officer, or citizen thereof, or with reasonable cause to believe that it will be employed in the service of any such belligerent nation after its departure from the jurisdiction of the United States.” H. Rept. No. 30, 65th Cong., 1st Sess., p. 4. This phraseology was lost in the shuffle when the Senate substituted its bill, S. 2, for H. R. 291. Two conference reports were required to settle differences between the two Houses on Title I dealing with espionage. Both conference reports kept the Senate phraseology of Sec. 3 of Title V (which was based on the phraseology submitted by Mr. Gregory), and both statements of the House conferees informed the House that “no material change was made in the provisions” of Title V.Cf. H. Rept. No. 65, pp. 18–19 and H. Rept. No. 69, p. 19 (65th Cong., 1st Sess.).Cf. also Cong. Rec, 65th Cong., 1st Sess., Vol. 55, Parts 2–4.

34 (1922) Vol. 2, p. 714.

35 (1922) Vol. 2, p. 714.

36 Ibid., p. 714, n. 3.

37 Ibid., p. 715, n. 2.

38 Ibid., pp. 693, 695, 711–712.

39 7 Wheaton (1822) 283, 340.

40 Cf., for example, Case of the United States at Geneva, Papers relating to the Treaty of Washington (1872), I, 82: “Without wearying the patience of the Tribunal in the further discussion of this question, it will be assumed that a vessel of war is not to be confounded with ordinary contraband of war. Indeed, the only respectable authority which has been cited even apparently to the contrary, is an observation which Mr. Justice Story thrust into the opinion of the Supreme Court of the United States, upon the case of the Santisima Trinidad.” See also the review of the opinions of distinguished international lawyers, presented by John Bassett Moore in his History and Digest of … International Arbitrations (1898), Vol. I, pp. 670–675.

41 “The above rules [of Treaty of Washington] may be said to have acquired the force of generally recognized rules of international law, and the first of them is reproduced almost textually in Article 8 of the Hague convention No. XIII of 1907 concerning the rights and duties of neutral powers in case of maritime warfare, the principles of which have been agreed to by practically every maritime state.” Colville Barclay, British Chargé d’Affaires in Washington, to Secretary of State Bryan, Aug. 4, 1914. U. S. Foreign Relations, 1914, Supplement, p. 594.

42 For the text, see above, p. 577.

43 36 Stat. 2415. The official French text reads “qu'entre les Puissances Contractantes.”

44 Deák, and Jessup, (A Collection of Neutrality Laws, Regulations and Treaties, 1939, Vol. II, p. 1376 Google Scholar), note that “according to available information this convention [XIII] is at present in force by reason of ratification of the original signature or by virtue of subsequent adherence, between the following countries: Austria, Belgium, Brazil, China, Denmark, El Salvador, Finland, France, Germany, Guatemala, Haiti, Hungary, Japan, Liberia, Luxemburg, Mexico, Netherlands, Nicaragua, Norway, Panama, Portugal, Rumania, Russia, Siam, Sweden, Switzerland and the United States.”

45 The same might be said of many other articles of Convention XIII, including Article 6, and of some of the other Hague Conventions.Cf. the cases of The Möwe, [1915] P. 1, and The Blonde, [1922] 1 A. C. 313, where British courts considered the problem and applied rules of Hague Convention VI as international law, even though the treaty had not been ratified by the British Government.

46 Deák and Jessup, op. cit., p. 7. The Argentine decree considered “that the principles of international law consecrated by the opinion of authors and by the practice of nations have been condensed in the clauses of the Convention” XIII.

47 Ibid., p. 79.

48 Ibid., p. 370. The Chilean Minister of Foreign Relations stated that the “Conventions of The Hague ought to be followed, even though they have not been ratified by the Government of Chile, it being understood that they are declaratory of the principles of international law universally recognized.”

49 Ibid., pp. 551, 556.

50 Ibid., p. 570.

51 Ibid., p. 669.

52 Ibid., p. 679.

53 Ibid., p. 697.

54 Ibid., p. 771.

55 Ibid., p. 938.

56 Ibid., p. 1270.

57 Ibid., p. 10. On this occasion, the Argentine declaration stated that the fact .that Hague Conventions V and XIII had not been ratified by Argentina “does not diminish their value as a body of principles and practices of the laws and customs of war, which, as general principles recognized by civilized nations, set forth the rights and duties of neutral states.”

58 Ibid., p. 357.

59 Ibid., p. 874.

60 See above, note 41. It would also appear from press reports during the present war that Hague Convention XIII was cited as international law by the United States, Germany, Russia, and Norway in the City of Flint case, and by Great Britain, Germany, and Norway in the Altmark case.Cf. also Jessup, P. C., “The Reality of International Law,” Foreign Affairs, Vol. 18 (1940), p. 244 Google Scholar ff.

61 British Foreign Enlistment Act, Aug. 9,1870. 33 and 34 Vict., Chap. 90, Sec. 8; also in Deák and Jessup, op. cit., p. 136. The provisions of Sec. 8 of this Act were proclaimed by the British Government in the Franco-Prussian and Spanish-American Wars, by Australia in the Russo-Japanese War, by the British again in 1922, and were reiterated in the British Admiralty Instructions of 1926.Deák and Jessup, op. cit., pp. 147, 150, 163, 165, 221–2.

62 Deák and Jessup, op. cit., p. 87 (1914); p. 95 (1933).

63 Ibid., p. 238 (1937).

64 Ibid., p. 387 (1904); p. 393 (1914).

65 Ibid., p. 445 (1918 and 1924).

66 Ibid., p. 482 (1938); p. 483 (1914); p. 496 (1904); p. 503 (1898).

67 Ibid., pp. 482, 572 (1938).

68 Ibid., pp. 482, 577 (1938).

69 Ibid., pp. 482, 701 (1938).

70 Ibid., pp. 482, 742. (?).

71 Ibid., pp. 482, 756. (?).

72 Ibid., p. 798 (1904); p. 804 (1914).

73 Ibid., pp. 482, 840 (1938).

74 Ibid., pp. 482, 970 (1938). In making this survey, the writer has been aided by the citations given in Harvard Research Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War (1939), this Journal, Vol. 33, Supp., pp. 254–255. However, since, in the preparation of this Draft, no one considered it open to question that a neutral is obligated to take measures to prevent the departure of any war vessel for belligerent delivery, the citations there given did not distinguish between departure of war vessels armed to belligerent order and others. The writer has combed these citations since the Attorney General gave his opinion, to establish the precise point at issue.

75 Annual Report of the Secretary of the Navy for 1898, pp. 4, 21–22.Cf. also Chadwick, F. E., The Relations of the United States and Spain: The Spanish-American War (1911), Vol. I, p. 12 Google Scholar, n. Moore's Digest of International Law, Vol. VII, p. 861, gives the detailed story from manuscript sources in the State Department, but confuses the Somers with the Albany. One other vessel, the Nictheroy (El Cid), renamed the Buffalo, was purchased from the Brazilian Government on July 11,1898, during the course of the war, but the 1898 Report of the Secretary of the Navy refers to her on May 30, 1898, as “the U. S. merchant steamer Nidheroy.” Op. cit., Appendix, pp. 51–55.

76 For his statement, see infra, p. 736.

77 Wheaton's International Law, 6th English ed. (1929, A. B. Keith), Vol. 2, pp. 977–978.

78 A. S. Hershey, The Essentials of International Public Law and Organization (rev. ed., 1927), Sec. 462, n. 6. Hershey erroneously states that the vessels were sold to Japan.

79 Holland, T. E., “Neutral Duties in a Maritime War, as Illustrated by Recent Events,” Proceedings of the British Academy, 1905–1906, p. 56 Google Scholar.

80 See also an unsigned editorial (by Finch, George A.), “The purchase of vessels of war in neutral countries by belligerents,” this Journal, Vol. 9 (1915), p. 177 Google Scholar ff. ; also, L. H. Woolsey, loc. cit. The only evidence the writer has been able to find to support the statement in Keith's Wheaton that Germany permitted the exportation of torpedo boats to Russia during the Russo-Japanese War, is a statement in Hershey, A. S., The International Law and Diplomacy of the Russo-Japanese War (1906) p. 92 Google Scholar, that a German Socialist member of the Reichstag charged, and that newspapers repeated the charge, that the German Government permitted the exportation overland of parts of torpedo boats, which were reported as being assembled at Libau, Russia. Hershey adds that these and similar reports “which are drawn from the newspapers, may be somewhat wanting in accuracy and authenticity,” but, if true, they would indicate “a gross breach of neutrality.” Ibid., pp. 96–97.

81 “The United States has always looked upon the Three Rules of Washington as declaratory of international law, and as the necessary and natural consequences of the doctrine of neutrality, proclaimed and enforced by the United States since the wars of the French Revolution …” Bryan to Barclay, Aug. 19, 1914. U. S. For. Rel., 1914, Supp., p. 602. This was likewise our argument in the Alabama arbitration.

82 36 Stat. 2415.

83 See infra, p. 736.

84 The text of Sec. 2 is found above, p. 575.

85 The Attorney General does not elaborate his thesis in detail, but this part of his opinion is obviously based—in some places almost verbatim—on the letter signed by Charles C. Burlingham, Thomas D. Thacher, George Rublee, and Dean Acheson, and published in the New York Times for Aug. 11, 1940. The writer has examined that letter in a memorandum published in the Congressional Record for Aug. 20, 1940, pp. 16136–16137.

86 Cf. Professor Hyde's indication of the purpose of Sec. 2, op. cit., p. 716.

87 Annual Keport of the Attorney General for 1916, p. 15. Italics added. The Sections 16 and 17 referred to are incorporated in the present United States Code, Title 18, Sees. 28 and 29.They provide for the bonding or detention of certain suspicious warlike vessels.

88 See above, p. 581.

89 See above, note 81.

90 36 Stat. 2415.Cf. Woolsey, loc. cit.; also Harvard Research Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War, this Journal, Supp., Vol. 33 (1939), p. 232 ff.