Foreign Relations of the United States Diplomatic Papers, 1939, General, Volume I

711.00111/132

Memorandum by the Legal Adviser (Hackworth)⁵

undated

The Joint Resolution of Congress approved March 4, 1915 (Public No. 72—63d Congress, 38 Stat. 1226) “To empower the President to better enforce and maintain the neutrality of the United States” having to do with the withholding of clearance from any vessel when there was reasonable cause to believe that it was “about to carry fuel, arms, ammunition, men, or supplies to any warship, or tender, or supply ship of a belligerent nation, in violation of the obligations of the United States as a neutral nation” was repealed by Section 11 of the act of Congress approved June 15, 1917 (Public No. 24—65th Congress, 40 Stat. 217, 223). There was incorporated in lieu of the resolution of 1915, Section 1 of Title V of the act of 1917 reading as follows:

“During a war in which the United States is a neutral nation, the President, or any person thereunto authorized by him, may withhold clearance from or to any vessel, domestic or foreign, which is required by law to secure clearance before departing from port or from the jurisdiction of the United States, or, by service of formal notice upon the owner, master, or person in command or having charge of any domestic vessel not required by law to secure clearances before so departing, to forbid its departure from port or from the jurisdiction of the United States, whenever there is reasonable cause to believe that any such vessel, domestic or foreign, whether requiring clearance or not, is about to carry fuel, arms, ammunition, men, supplies, dispatches, or information to any warship, tender, or supply ship of a foreign belligerent nation in violation of the laws, treaties, or obligations of the United States under the law of nations; and it shall thereupon be unlawful for such vessel to depart.” (Ibid. 221: Title 18, U. S. C. § 31.)

It will be seen that this provision authorizes the President to withhold clearance “whenever there is reasonable cause to believe that any such vessel” is about to do the things forbidden.

Section 7 of the Joint Resolution approved May 1, 1937 (Public No. 27—75th Congress, 50 Stat. 121, 126) was designed to strengthen the corresponding provision in the act of June 15, 1917 just quoted. It was designed to cover cases where there exists cause to believe that the vessel is about to do the forbidden acts but there is not available sufficient evidence to justify the withholding of clearance under the act of 1917. In such cases the President may permit the vessel to sail conditioned upon her giving a bond that she will not deliver men or any part of her cargo to any warship, tender, or supply ship of a belligerent state. It will be noted that this provision does not refer to treaties or the law of nations as did the earlier acts. The President is to act, if in his “judgment, such action will serve to maintain peace between the United States and foreign states, or to protect the commercial interests of the United States and its citizens, or to promote the security or neutrality of the United States”.

On the question whether it should be applied in isolated cases or only in cases of repeated shipments, attention is called to paragraph (b) reading:

“If the President, or any person thereunto authorized by him, shall find that a vessel, domestic or foreign, in a port of the United States, has previously cleared from a port of the United States during such war and delivered its cargo or any part thereof to a warship, tender, or supply ship of a belligerent state, he may prohibit the departure of such vessel during the duration of the war.”

It is not possible to state whether or to what extent the Department’s memorandum of September 19, 1914 regarding “Merchant vessels suspected of carrying supplies to belligerent vessels” (Department of State, Diplomatic Correspondence with Belligerent Governments Relating to Neutral Rights and Commerce (1915) 43, 44) would be followed in the event of another major war.

Section 8 of the Joint Resolution approved May 1, 1937 (50 Stat. 127) regarding submarines and armed merchant vessels, has to do with merchant vessels’ which have not been converted into war vessels in the manner contemplated by Hague Convention No. VII. It is designed to apply to merchant vessels whether armed for offensive or for defensive purposes, the theory being that it is often difficult, if not impossible, to draw a line of demarcation between offensive and defensive armaments. It will be noted that the President is given discretion with respect to the restrictions to be placed upon such vessels and that the restrictions are to be imposed only in the event that he shall find that they will “serve to maintain peace between the United States and foreign states, or to protect the commercial interests’ of the United States and its citizens, or to promote the security of the United States”.

5. Marginal notation: “Handed to Mr. Mallet, of British Embassy, by Mr. Dunn on June 19, 1939, as an oral reply to Mr. Mallet’s oral inquiry of June 5, 1939.” James Clement Dunn was Advise on Political Relations.