Memorandum by the Legal Adviser (Hackworth)76
The Sale of Vessels of War and Auxiliary Vessels
Section 23, Title 18, of the United States Code makes it unlawful to fit out and arm, or attempt to fit out and arm, or to procure to be fitted out and armed, or knowingly to be concerned in “furnishing, fitting out, or arming of any vessel, with intent that such vessel shall be employed in the service of any foreign prince, or state” etc., to [Page 60]cruise or commit hostilities against the subjects, citizens, or property of any foreign prince, or state, etc., with which the United States is at peace.
Section 33 of the same Title of the Code provides that during a war in which the United States is neutral it shall be unlawful to send out of the jurisdiction of the United States any vessel built, armed, or equipped as a vessel of war, with any intent or under any agreement or contract, written or oral, that such vessel shall be delivered to a belligerent nation, or to an agent, officer, or citizen of such nation, 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.
Section 14 (a) of the act entitled “An Act to expedite national defense, and for other purposes” (Public—No. 671—76th Congress77), approved June 28, 1940, provides that “notwithstanding the provisions of any other law, no military or naval weapon, ship, boat, aircraft, munitions, supplies, or equipment, to which the United States has title, in whole or in part, or which have been contracted for, shall hereafter be transferred, exchanged, sold, or otherwise disposed of in any manner whatever unless the Chief of Naval Operations in the case of naval material, and the Chief of Staff of the Army in the case of military material, shall first certify that such material is not essential to the defense of the United States.”
Section 33, supra, is perhaps the most difficult provision of statutory law to surmount in connection with any sale of vessels built and intended for belligerent operations. It would be possible to amend this section in broad general terms so as to cover the other provisions referred to without specifically mentioning them, thus making it possible to release such vessels as it might be deemed desirable to release. The amendment might read somewhat as follows:
Nothing contained in Section 33, Title 18, of the United States Code or in any other provision of law shall be so applied as to prevent the departure from the United States of any vessel which belonged to the Government of the United States and which the President, after consultation with the Secretary of War and the Secretary of the Navy, shall decide may be sold without detriment to the national defense of the United States: Provided, that prior to the departure of the vessel title thereto shall have passed to the foreign purchaser and compensation, which in the judgment of the President, the Secretary of War and the Secretary of the Navy shall be deemed adequate, shall have been paid to the United States.
An amendment of this kind would be applicable to the sale of any kind of vessel but it undoubtedly would be necessary to explain to the committees just what is in contemplation. If an amendment [Page 61]should be passed on the basis of the explanation, it might be found difficult later to extend the authority to other larger craft.
None of the foregoing would relieve us of the charge that the sale of war craft by this Government to a belligerent government would be unneutral.