500.A15A4 Steering Committee/102: Telegram

The American Delegate (Wilson) to the Secretary of State

416. Your 219, October 17, 6 p.m. Section 1 understood. Section 2, paragraph 2 and following.

While I am not only interested in this modification of opinion and find that it simplifies the immediate problem the matter is of such far reaching importance to our work during the future months that I venture to discuss it again with you. Were it merely a question of the prohibition of the manufacture of certain types of weapons which will be prohibited under the General Disarmament Treaty I should not hesitate to carry on under .this instruction. But you will note that for years the American delegation has maintained and still maintains a general reservation on the articles of the draft convention on manufacture of arms (document No. A. 30, 1929 IX September 4) relating to supervision and publicity, and if we admit the greater right of the Federal Government to prohibit certain types of manufacture we must admit the lesser right to supervise such manufacture. The prohibition of manufacture of certain types prohibited in the General Disarmament Treaty will probably include in addition to artillery, chemical warfare, certain types of airplanes, tanks and certain types of naval craft. This prohibition of military armaments leads inevitably to the demand for supervision of and probably ultimately extension to the economic field. Control and supervision governmental or international in the internal economic field in its last analysis might threaten the sovereignty of the individual states of the union. While I realize that on the ground of expediency a line can be drawn any place the Department sees fit, nevertheless, the acceptance of a first step in governmental control as visualized in [Page 347]your 219 may lead us to an embarrassing situation when it comes to switching from the constitutional ground to the expediency ground in rejecting unacceptable provisions. To sum up while the modification of our attitude and the admitting of the possibility of supervision of production would simplify the immediate problem of the negotiation of a convention on manufacture of arms, I fear it would render more difficult the larger problem of international control as applied to prohibiting weapons. If we maintain our attitude of constitutional inability to supervise production we can then logically restrict our action to an undertaking by the Government not to manufacture nor to acquire nor to permit export of weapons which are prohibited by the general treaty. Any endeavor to carry our obligation further we could meet by our constitutional inability.

In consequence I confess that I am hesitant without the fullest consideration to admit in a [sic] ineptitude that the Federal Government has such rights of control, supervision and prohibition relating to private manufacture within the states and believe we would be justified in getting the opinion of the Attorney General.90

I recollect that Mr. Charles Cheney Hyde in 1924 and 1925 expressed grave doubts as to the constitutionality of any provision which would tend to limit private manufacture as to the kind or quality of weapons they produced.91 The Judge Advocate General of the Army92 in 1931 similarly expressed doubt as to the constitutionality of any treaty provision which provided for the limitation of the right of a state to maintain its national guard. It would appear that the same basic constitutional consideration is involved in both these questions, namely, under our Constitution what are the limitations of the power of the Federal Government other than those specified as to the acceptance of treaty obligations which may limit the exercise of sovereign powers by any state within its own territorial boundaries?

The Committee on the Manufacture of Arms has adjourned and will not meet until after the meeting of the Bureau on November 3rd. There is therefore time for further consideration and for the obtaining, if it is judged advisable, of the opinion of the Attorney General.

Should you eventually feel as stated in section 2, paragraph 2, of your 219, I am of the opinion that in all fairness we must take an [Page 348]early opportunity to explain the change in our attitude which we have maintained for the past 7 years. I think we must not run any risk of being subsequently put in a position where the action of the courts might cause other nations to feel that we have violated our treaty obligations.

Reference to sections 3 and 4, I will comment at a later date.

  1. William D. Mitchell.
  2. Mr. Hyde was Solicitor for the Department of State, 1923–25; the occasion for his opinion was American participation in the Conference for the Supervision of the International Traffic in Arms, Geneva, 1925. For correspondence relative to the Conference, see Foreign Relations, 1924, vol. i, pp. 17 ff.; ibid., 1925, vol. i, pp. 26 ff.
  3. Major General Blanton Winship.