862.85/61a
The Secretary of State to President Wilson
My Dear Mr. President: Referring to the disposition to be made of the German refugee ships in American ports, about which we conversed yesterday, I wish to set forth my further views on the subject. They have the character of enemy private property within the jurisdiction of a belligerent. It might be argued that inasmuch as they are subsidized by the German Government and are more or less under its control, they partake of the nature of enemy public property, which is confiscable by the belligerent in whose possession it is found; but I think this would be regarded as a strained interpretation of their character, and I would, therefore, rather regard them as privately owned enemy property. As to the disposition of enemy private property thus situated, there are two views among authorities. According to the one view, there is an obligation that they should be exempt from confiscation except in the exigency of military necessity, public safety, or reprisal. This is the European Continental view. According to the Anglo-American view, the sovereign possesses the right to require confiscation if this should be found necessary, but [it] leans toward a general policy of exemption. The difference in effect between these two views is not very great. In practice, however, nations as a rule seem to recognize the exemption of private property as a policy which ought to be followed save in exceptional cases.
In view of the foregoing, it has, I believe, become the modern custom to requisition enemy private property when necessary upon the payment of compensation. This is the rule agreed to by the nations at The Hague in Convention Six, 1907,1 relating to the status of enemy merchant ships at the outbreak of hostilities. The United States, however, did not sign this Convention on the ground, among others, that it did not give complete freedom for vessels of the enemy in port at the outbreak of hostilities to depart. As these vessels are generally so disabled as to be unable to depart, and as they would be immediately seized on the ocean by Allied cruisers if they did depart, [Page 2] it seems this policy of the United States need not interfere with any policy of requisition which may be adopted.
It may be argued that the Treaties of 1828,2 1799,3 and 17854 would be violated by requisitioning the German refugee vessels: The only stipulation of these treaties bearing on this point is Article 23 of the Treaty of 1799 providing that in case of war “The merchants of either country then residing in the other shall be allowed to remain nine months to collect their debts and settle their affairs, and may depart freely, carrying off all their effects without molestation or hindrance.” As most of the German vessels are owned by non-resident German corporations, with only operating agents here, only two or three vessels lying in our insular ports being possibly owned by Germans residing there, it would seem that this stipulation of the treaty would, as a practical matter, have little application to vessels in United States ports. I have not exact data, however, as to the resident ownership of these vessels.
As to the authority of the President to requisition the German ships without an act of Congress, I have considerable doubt, except possibly in the event that they are to be used directly in warlike operations, in which case the President might be regarded as exercising his powers as commander-in-chief. I have not had opportunity to examine this point thoroughly.
I think that, outside of the purely legal questions involved, there is strong moral right on our side in taking possession of these German vessels and using them in our merchant marine. The German submarine warfare has very materially decreased the shipping of the world and has caused very serious embarrassment to this country in the matter of transportation. I do not feel that we are bound to let these ships lie idle in our ports while the tonnage of the world is being from day to day reduced by the German Government. If you hold the same view as to the matter, I have no doubt that the legal difficulties can all be removed and the vessels can be repaired and sent forth with cargoes.
Faithfully yours,