763.72111/1332½
The Counselor for the Department of State (Lansing) to President Wilson
Mr Dear Mr. President: I am in receipt of your letter of to-day asking me to comment upon a telegram, dated the 8th, from Paul Fuller, Benjamin F. Tracy and Frederic R. Coudert, in which they assert that Congressional alteration of the rules of neutrality during warfare is contrary to accepted international law and is an absolute violation of neutrality.
I think these gentlemen are entirely right in the general principle asserted. Any change in our statutes by amendment or repeal would undoubtedly benefit one or the other of the belligerents. Whatever the purpose of a change the belligerent, whose interests were unfavorably affected, would be justified in protesting on the ground that the legislation was for the advantage of its enemy, and, therefore, unneutral. I have in a general way referred to this in Comment III of the Memorandum on the Münsterberg letter (page 6).21
Some days ago I spoke to Secretary Bryan about this matter in anticipation of the introduction of bills in Congress for amendment of our neutrality statutes, and expressed an opinion substantially the same as that asserted by Messrs. Fuller, Tracy and Coudert.
At that time I called his attention to another application of the same principle which would come up at the meeting of the Governing Board of the Pan American Union. Briefly the point was this:
[Page 181]If this principle was applied to the various schemes of neutralization of certain sea areas and of changing the general rules as to the treatment of belligerent warships, which had been suggested by certain South American republics, such changes would necessarily be unneutral because they would unequally affect the interests of the belligerents; and, unless the belligerents unanimously consented to them, their adoption would be a justifiable ground for complaint. The conclusion was that, as it was manifestly impossible to obtain unanimous consent, no modification of existing rules should be adopted during the present wars, though neutral rights and duties might be profitably considered informally by a Commission looking to future action after the wars were over.
I also discussed the subject in a confidential way with the Argentine Ambassador, who agreed entirely in the opinion that any present change in the rules would be unneutral and impracticable, and who suggested that a Commission be named for an informal exchange of views upon the subject. This was adopted by the Board at its meeting.
There is, however, another type of legislation in relation to the enforcement of neutral duties, which I do not think can be construed into an unneutral act and which it may be advisable, if not necessary, to enact. There are certain obligations as to neutral conduct imposed by treaties, which have never been incorporated in our laws so that the Executive possesses no power to prevent and the courts no power to penalize violations. The result is that, in attempting to enforce these obligations, we are skating on pretty thin ice, and if the authority of the officials should be questioned I am afraid of the result.
Furthermore, some of the penalties imposed by our present statutes are so inadequate that an offender would willingly suffer the penalty for the privilege of violation.
As legislation of this sort, affecting treaty provisions and statutes, would in no way change the rules of neutral conduct but would only confer powers for the proper enforcement of existing rules, there would be no element of unneutrality in its enactment.
I have taken up this matter with Mr. Warren, the Assistant Attorney General having charge of neutrality cases, with the object of curing in some way this embarrassing state of the law which materially affects the proper enforcement of neutrality.
The telegram is herewith returned.22
Very sincerely yours,