793.94/16660
Memorandum by the Legal Adviser (Hackworth) to the Chief of the Division of Far Eastern Affairs (Hamilton)
Mr. Hamilton: It is undoubtedly true that a declaration of war by Japan against China would give the former many more belligerent rights on the high seas than she is now exercising, including the right of visit and search.
It is my understanding that American vessels are not now carrying arms, ammunition and implements of war to Rangoon for transshipment over the Burma Road because of prohibitions in the Neutrality Act21 making it unlawful for them to carry such articles to a belligerent port. China and Japan not having been declared to be belligerents under the Neutrality Act, the carriage of such articles in American vessels directly to China is not unlawful. If there were a declaration of war by Japan, the President would undoubtedly be under the necessity of issuing a proclamation under section 1 of the Neutrality Act if he should find that such action “is necessary to promote the security or preserve the peace of the United States or to protect the lives of citizens of the United States” Sections 2 (a) and (c) of the Neutrality Act prohibiting American vessels from going to belligerent ports and requiring the passage of title to goods destined [Page 616] to belligerent countries would not be applicable under section 2 (g) of the act to ports “on the Pacific or Indian Oceans, including the China Sea, the Tasman Sea, the Bay of Bengal, and the Arabian Sea, and any other dependent waters of either of such oceans, seas, or bays” but American vessels could not carry arms, ammunition and implements of war to China after the issuance of a proclamation by the President.
The Lend-Lease Bill22 does not modify the Neutrality Act as far as these provisions of that act are concerned. The only way to avoid the consequences of a declaration of war, so far as the Neutrality Act is concerned, would be for the President to decline to issue a proclamation. He has the authority to do this by failing to find that it is necessary to accomplish the purposes stated in section 1 of the act.