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Published online by Cambridge University Press: 02 September 2013
The neutrality legislation enacted at Washington in 1935 was admittedly a compromise, satisfying neither the President, who in his statement upon signing the joint resolution, again criticized its mandatory feature as potentially dangerous, nor many of those in and out of Congress who wanted some definition of our relation to war. As if to point the moral, the Italo-Ethiopian conflict flamed into what the President was pleased to call “a state of war,” and some of the very issues which the legislation was intended to meet became acute. More recently, civil war in Spain has tragically illuminated new issues in our position and policy.
1 See my “Current Neutrality Problems” in this Review, Vol. 29, pp. 1022–1041 (Dec., 1935)Google Scholar.
2 New York Times, Sept. 1, 1936, p. 1Google Scholar.
3 See Buell, R. L., “The New American Neutrality,” Foreign Policy Reports (1935–1936), No. 23, pp. 281ffGoogle Scholar. A paper on this question will appear in 1937 in Problems of Peace (11th Series, London, Allen and Unwin, Chap. 7)Google Scholar.
4 Professor P. C. Jessup has spoken of it as “a hodge-podge of ideas scrambled together in the legislative frying-pan in the closing days of a hot summer session in Washington.” Neutrality Today and Tomorrow (New York, 1936), p. 124Google Scholar.
5 See, for instance, “The Federal Council of Churches,” New York Times, Dec. 4, 1935, 14: 2Google Scholar.
6 See New York Times, Dec. 19, 1935, 19: 4; ibid., Dec. 26, 1935, 1:1; International Conciliation (New York, Carnegie Endowment, 1936), No. 316Google Scholar.
7 See, for instance, New York Times, Dec. 25, 1935, 3: 1, for a proposal by Senators Clark and Pope for the extension of embargoes to coal, iron, steel, and cotton.
8 See 74:1, Hearings Before the Committee on Foreign Affairs on H.R. 8788, 34ff. The evidence of legislative activity by the Dupont interests is to be found in Part 5 of the hearings of the committee referred to above (73rd Cong., pursuant to S. Res. 296, 1934), 1071ff., 1110ff.
9 The groupings have been noted by Eagleton, C. in “La Législation sur neutralité aux États-Unis,” Révue de droit international et du législation comparée, Vol. 17, pp. 461, 464, 471–472 (1936)Google Scholar, and Garner, J. W., “Recent Neutrality Legislation of the United States,” British Yearbook of International Law, Vol. 17, pp. 45, 49 (1936)Google Scholar. “The debates in Congress revealed some six different shades of opinion, with little prospect of reconciliation.”
10 There were slight differences between the Pittman and McReynolds drafts.
11 Foreign reactions to the President's message and to the conflicting neutrality bills indicate how closely the development of American policy was watched—and weighed—abroad. See, for instance, New York Times: Jan. 3, 1936, 9:3 (France); Jan. 5, 30:3 (Geneva); 30:4 (Italy); 31:5 (Germany); Jan. 6, 6:4 (Great Britain); 7:1 (France); 7:2 (Argentina).
12 Is there not a certain inconsistency between all this and at least two treaties already ratified by the United States: the Anglo-American convention of May 19, 1927, providing for the renunciation of claims for infractions of neutral rights during the Great War, and the Pan American Neutrality Convention of 1933, setting forth an elaborate series of rules of neutrality? Yet this draft had presumably received State Department scrutiny.
13 See 74:2, Hearings before the Committee on Foreign Affairs on H.J. Res. 422 (1936). “American Neutrality Policy,” 177, 183, 199, 205, 208, 214 ft. See also 74:2, Hearings before Committee on Foreign Relations on S. 3474 (1936). “Neutrality,” 259 ff.
14 Those who testified before the Senate committee were Secretary Hull, Assistant Secretary Moore, and Mr. Green H. Hackworth of the Department of State, Senator Nye, Mr. Charles Warren; also Professor E. M. Borchard, who strongly reinforced the well-known position of Dr. J. B. Moore. See New York Times, Jan. 30, 1936, 13:5. Professor Borchard also testified before the Committee on Foreign Affairs, as did Professor C. C. Hyde.
15 Op. cit., 283 (Senator Thomas).
16 Congressional Record, Vol. 80, p. 1143Google Scholar.
17 Ibid., pp. 2175 ff., 2286 ff. Two amendments—one by Senator Clark to limit the act to May 1, 1936, and one by Senator Bone to insert the trade-at-risk principle in the resolution—were defeated 16 to 61 (19 not voting) and 18 to 55 (23 not voting), respectively.
18 74:2, H.J. Res. 492, Pub. Res. 74. For text, see Amer. Jour. Internal. Law, Vol. 30, Supp., p. 109 (1936)Google Scholar.
19 Senator Thomas explained these changes as “merely clarifying amendments, making the words mean what the authors of the original law always thought the words meant.” Congressional Record, Vol. 80, p. 2188Google Scholar. The President's proclamation (No. 2140) of October 5, 1935, “finding” a state of war to exist, can, therefore, be considered as within congressional intent, so far at least as executive action is concerned. It is, however, interesting in another connection, to be noted below, viz., the application of the term “state of war” to facts not hitherto technically considered war in the legal sense.
20 New York Times, Mar. 1, 1936. The President stated: “The policies announced by the Secretary of State and myself at the time of and subsequent to the issuance of the original proclamation will be maintained in effect. It is true that the high moral duty I have urged on our people of restricting their exports of essential war materials to either belligerent to approximately the normal peace-time basis has not been the subject of legislation. Nevertheless, it is clear to me that greatly to exceed that basis, with the result of earning profits not possible during peace, and especially with the result of giving actual assistance to the carrying on of war, would serve to magnify the very evil which we seek to prevent. This being my view, I renew the appeal made last October to the American people, that they so conduct their trade with belligerent nations that it cannot be said that they are seizing new opportunities for profit or that by changing their peace-time trade they give aid to the continuation of war.”
21 The mobilization of peace-group pressure was so late as to be of little real importance. It was exerted ineffectively on the last day of the Senate debate, February 18. See Congressional Record, Vol. 80, p. 2304Google Scholar.
22 See Bliven, B., “They Cry ‘Peace, Peace’,” New Republic, Vol. 85, p. 36Google Scholar.
23 House Committee, op. cit., pp. 51ff.; Senate Committee, op. cit., pp. 171, 208ff.
24 See, for instance, Congressional Record, Vol. 80, p. 2287Google Scholar (Pittman), 2296 (Pope).
25 Ibid., p. 2293 (Bone), p. 2262 (Smith).
26 Ibid., pp. 2171, 2297, for quotations of editorials and dispatches to this effect.
27 See Rippy, J. F., “Foreign Markets and the Economic Position of the United States,” South Atlantic Quarterly, Vol. 34, p. 15Google Scholar.
28 See Fuller, J. V., “The Genesis of the Munitions Traffic,” Jour. of Mod. Hist., Vol. 6, p. 280CrossRefGoogle Scholar. See also Report of Senate Committee on Investigation of the Munitions Industry (74:2, Senate Report, No. 944), Part 5, pp. 25 ff., 59 ff.
29 Clark, J. J., The Costs of the War to the American People (New York, 1931)Google Scholar.
30 See Warren, C., “Contraband and Neutral Trade,” Proceedings of Academy of Political Science (1935), p. 189Google Scholar, for a careful summation of profit and loss. The author shows that the net increase of exports to Europe for the first two years of the war was valued at $1,954,000,000, and that of the gross increase of $2,593,000,000, a total of $390,000,000 went to the neutrals.
31 Professor Jessup has shown, for instance, that in the period 1911–13 the United States exported only 25.1 per cent of the total imports of Latin America, while the European belligerents exported 59.7 per cent. Had American exports been substituted, there would have been an increase of $750,000,000 in our foreign trade in that region alone. For the Far East, the increase would have been $400,000,000. In 1933, only 6.9 per cent of American exports went to South America, while we received 14 per cent of our imports from those countries. For Asia, the percentages were 17.7 and 29.4; for Europe, 50.9 and 31.9. The possibilities of shifts in trade appear large.
32 The domestic effect of an embargo is, of course, unevenly distributed, especially in the agricultural field, as, for instance, cotton. But recent American agricultural policy suggests an increasing emphasis on diversified farming and the equation of production with domestic demand. In the industrial sphere, there is, for most industries, some flexibility, not only in amount, but in type of production.
33 See Jennings, W. W., “The American Embargo, 1807–1808,” Univ. of Iowa Studies in the Social Sciences (1921), No. 1Google Scholar; Sears, L. M., Jefferson and the Embargo (Durham, 1922)Google Scholar, for an analysis of the balance of forces in the Napoleonic period—and the equilibrium achieved.
34 See, for instance, the Argentine Anti-War Treaty already noted, and the Convention Defining Aggression, July 3, 1933.
35 For proposals on this problem, see the draft statute of the National Peace Conference, op. cit. There is no reason, except one of expediency, however, for assuming governmental responsibility for losses which in all but the most unusual cases can be attributed not to administration of the law but to the over-zealous pursuit of contracts by individual producers. A system of licenses similar to those issued by the National Munitions Control Board would facilitate regularity of operation of such a provision.
36 It has been pointed out that such a policy might result in increasing armament production and policies of self-sufficiency abroad. See, for instance, Dulles, A. W., “Economic Implications of American Neutrality,” Annals of Amer. Acad., Vol. 186, p. 41CrossRefGoogle Scholar. But that is not a matter over which the United States has any control, whatever its policy. Present indications do not suggest that the consideration is a material factor in the framing of armaments policies.
37 For texts, see New York Times, Dec. 7, 1936, 8:2; Dec. 14, 14:1. In the draft treaty, the 1936 resolution was in effect reproduced.
38 The delegation of discretion in these or similar words has recently been made the subject of a suit under the Chaco Arms Embargo Resolution of May 28, 1934 (48 Stat. 811). The demurrer to the indictment set up by the defendants was in part based on the contention that the resolution is an unconstitutional delegation in that one basis of the finding set forth in the resolution relates to future contingencies, and is essentially legislative in character. In the district court, this contention was upheld. The definition in the resolution of the finding to be made by the President that an embargo “may contribute to the reëstablishment of peace” was found by Judge Byers “not to amount to a sanctioned delegation of power to declare a legislative purpose effective in the event that certain prescribed conditions are found to exist [but] an empowering of the executive to make up the legislative mind as to the future efficacy of the law, as the reason for giving vitality to it.” U. S. v. Curtiss-Wright Export Corporation (14 Fed. Suppl. 230, 1936). On appeal to the Supreme Court, the decision was reversed. Very broad grounds for the delegation of a wide discretion to the President were established by the Court. First, the nature of foreign relations, requiring secrecy in negotiation, and his “better opportunity of knowing the conditions prevailing in foreign countries … especially in time of war … [with] his confidential sources of information … disclose the unwisdom of requiring Congress in this field of governmental power to lay down narrowly defined standards by which the President is to be governed.” In this respect, the difference between domestic and foreign relations was emphasized and this case distinguished from Panama Refining Co. v. Ryan (293 U.S. 388). Second, “the principles which justify such legislation find overwhelming support in the unbroken legislative practice which has prevailed almost from the inception of the national government to the present day. A legislative practice such as we have here goes a long way in the direction of proving the presence of unassailable ground for the constitutionality of the practice, to be found in the origin and history of the power involved, or in its nature, or in both combined” (Ibid., Supreme Court, October Term, 1936, No. 98, 57 S. Ct. 216).
39 A very considerable body of literature has grown up during the past year or two in this field. The following selective list is indicative of the major trends: Crecraft, E. W., Freedom of the Seas (New York, 1935)Google Scholar—isolationist, laissez-faire as to neutrality; Dulles, E. W. and Armstrong, H. F., Can We Be Neutral? (New York, 1936)Google Scholar—trade-at-risk, mild restrictionist; Jessup, P. C., Neutrality, Today and Tomorrow (New York, 1936)Google Scholar—coöperationist as to collective security, restrictionist as to trade (includes a useful bibliography); Bradley, P., Can We Stay Out of War? (New York, 1936)Google Scholar—coöperationist with reservation, strongly restrictionist as to trade. Besides the articles listed in the foregoing footnotes, see “American Neutrality Reconsidered,” Columbia Law Review, Vol. 36, p. 105CrossRefGoogle Scholar (legal aspect of embargoes); Johnson, J. E., The Neutrality Policy of the United States, Reference Shelf (1936)Google Scholar, No. 7 (references, pro and con, on current issues); “American Neutrality,” 15 Congressional Digest (1936)Google Scholar, No. 1 (factual materials on the history of neutrality legislation); “The Attainment and Maintenance of World Peace,” Annals of Amer. Acad., Vol. 186Google Scholar (economic and political aspects of neutrality and collective security); various articles in Vols. 29 and 30 of Amer. Jour. Internat. Law (1935 and 1936).
