d'abord) that the neutral is bound to employ the means at its disposal then, to display the same vigilance."

...

It is to be presumed that Article VIII which "reproduced almost textually" the first rule of the Treaty of Washington, is to be interpreted in the sense in which Mr. Renault's report shows it to have been adopted, especially as Great Britain and the United States have ratified the Convention without any objection or reservation as to Article VIII thereof.

It seems obvious therefore that by neither the terms nor the interpretation of the provisions of the treaties on this point is the United States bound to assume the attitude of an insurer. Consequently the United States disclaims as a correct statement of its responsibility the assertion in your note that "His Majesty's Government will accordingly hold the United States Government responsible for any damages to British trade or shipping, or injury to British interests generally, which may be caused by such vessels having been equipped at, or departing from, the United States ports.

The British Chargé d'Affaires ad interim (Barclay) to the Secretary of State (Bryan), Aug. 4, 1914, and Mr. Bryan to Mr. Barclay, Aug. 19, 1914, MS. Department of State, file 763.72111/85; 1914 For. Rel. Supp. 593, 599, 601-602.

A neutral State shall use the means at its disposal to prevent within its territory the commission of any act the toleration of which would constitute a non fulfillment of its neutral duty; the use of force for this purpose shall not be regarded as an unfriendly act.

Research in International Law, Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War (Harvard Law School), art. 6, 33 A.J.I.L. Supp. (1939) 175, 245. For the comment on this article, see ibid. 247-248.

"The Hague Convention of 1907, concerning the Rights and Duties of Neutral Powers in Naval War, rejected the expression 'due diligence' because of its obscurity, and substituted the requirement that a neutral should be bound to employ the means at its disposal' to fulfill certain specified duties of prevention. The test thus laid down serves to free the neutral from the danger of being chargeable with the fulfillment of a burden to be deemed excessive because incapable of performance. On the other hand, it does not encourage belief that a neutral may invoke inherent weaknesses in its local institutions and laws in justification of failure to respond to international obligations. It calls for a measure of exertion proportional to the power of the territorial sovereign to combat what, in the particular case, will otherwise amount to unneutral conduct." II Hyde, International Law, etc. (1922) 780-781.

This Government may justly be held responsible for failure to enforce the legal rules of neutrality, but it is not bound to impose restrictions greater than those included in such rules. If the Government, as a matter of policy, advocates neutrality beyond the legal requirements, it cannot rightfully be called to account for infractions of these extra-legal restrictions, since it has no power to prevent or to punish their violation.

Memorandum of the Counselor for the Department of State (Lansing) submitted to President Wilson, Dec. 9, 1914, MS. Department of State, file 763.72111/10742; I The Lansing Papers, 1914-1920 (For. Rel.: 1939) 166,

169.

If the municipal statutes of the country should be in advance of the requirements of international law, I understand that it is not for a foreign government to protest against their infraction so long as the infraction does not extend to the Law of Nations and so long as the municipal laws are impartially administered.

Secretary Lansing to the German Ambassador (Count von Bernstorff), Jan. 7, 1916, MS. Department of State, file 763.72111El1/57; 1915 For. Rel. Supp. 818.

See the reply to the contention of Mexico that the United States should prevent importation into Mexico of arms and munitions for Mexican rebels, which the Mexican Ambassador regarded as a violation of the neutrality statutes of the United States, 1912 For. Rel. 740, 741-742; vol. I, p. 29, of this Digest.

If the laws have been violated, and if the United States has been negligent in the matter, it may well be that responsibility attaches to this government; but it is clearly for the United States to make the investigation and to decide in what manner and in how far those accused of violating a federal statute are amenable to punishment.

Memorandum of the Solicitor for the Department of State (Scott), July 23, 1908, MS. Department of State, file 5028/69–70.

66

". . . It is clearly incumbent upon both the Federal and State Governments to take the legal steps necessary to execute faithfully, not only the laws of the United States, but the international obligations of neutrality which rest upon this Government." President Taft to the Governor of Texas (Colquitt), Mar. 6, 1911, MS. Department of State, file 812.00/854; 1911 For. Rel. 414.

In connection with the control over radio stations exercised by the President through the Secretary of the Navy after the outbreak of the war in 1914, Attorney General Gregory wrote:

"If the President is of the opinion that the relations of this country with foreign nations are, or are likely to be, endangered by actions deemed by him inconsistent with a due neutrality, it is his right and duty to protect such relations; and in doing so, in the absence of any statutory restriction, he may act through such executive officer or department as appears best adapted to effectuate the desired end."

30 Op. Att. Gen. 291, 292 (1914).

"... the preservation of the neutrality of the United States in respect to the use of its ports by the belligerents or their vessels, is under the control of the Department of the Treasury, through the Customs officers in each district, who may call on the naval vessels for assistance in case of necessity. As an exception to this rule, I am advised that on the West Coast and in the Hawaiian Islands, the preservation of neutrality is in the hands of the Navy assisted by Customs officers. The character of the investigations of suspicious cases, whether initiated by the Government or by foreign representatives here, requires that the Collectors en

deavor to ascertain among other matters whether certain vessels in their ports are destined to supply belligerent cruisers at sea with coal, provisions, arms and other articles, whether these vessels are themselves prepared or preparing for conversion into armed cruisers to prey upon commerce, and whether the territorial jurisdiction of the United States is being invaded by armed vessels seeking supplies or information. In certain cases it may be necessary to use force to prevent the consummation of any such unneutral designs. In taking any action in such cases it is necessary to have in mind, not only the neutrality laws of the United States, but the Hague Conventions relating to neutrality, and also the rules laid down in the Declaration of London."

The Acting Secretary of State suggested that the preservation and enforcement of the neutrality of the United States could be accomplished better by placing it in the hands of the Navy Department, with the cooperation and assistance of the officers of the Treasury Department.

The Acting Secretary of State (Lansing) to President Wilson, Nov. 5, 1914, MS. Department of State, file 763.72111/628a; I The Lansing Papers, 1914-1920 (For. Rel.: 1939) 160.

For the Executive order of Sept. 5, 1939, regulating the enforcement of neutrality during the war which had broken out in Europe, see Department of State, I Bulletin, no. 11, p. 212 (Sept. 5, 1939).

In 1915 the German Government requested the Department of State to intercede with the Department of Justice looking to the issuance of instructions that questions to be propounded in a case then before the United States courts should avoid questions concerning the details of the military system of the German Government in the conduct of its naval operations. The Department answered:

Unavoidably any violation of the laws of this country which pertains directly or indirectly to naval activities of a belligerent may involve the military or political secrets of the government of that belligerent. If such secrets relate to the conduct of war by the employment of neutral territory as a base of naval operations or of direction of naval operations, it does not impress me that they are entitled to immunity in a judicial investigation.

The Secretary of State (Lansing) to the German Ambassador (Count von Bernstorff), Nov. 16, 1915, MS. Department of State, file 763.72111/3139; 1915 For. Rel. Supp. 869, 870.

CHANGES IN NEUTRAL'S LAWS AND REGULATIONS

§662

It is recited in the preamble to Hague Convention XIII of 1907 with respect to the rules adopted by neutral states to govern their neutrality that—

these rules should not, in principle, be altered, in the course of the war, by a neutral Power, except in a case where experience has

44008343-vol. VII-26

shown the necessity for such change for the protection of the rights of that Power.

2 Treaties, etc. (Malloy, 1910) 2352, 2353; 36 Stat. 2415, 2417.

Robert Lansing wrote as follows with respect to the propriety of changes in neutrality legislation during the course of a war:

Any change in our statutes by amendment or repeal would undoubtedly benefit one or the other of the belligerents. Whatever the purpose of a change the belligerent, whose interests were unfavorably affected, would be justified in protesting on the ground that the legislation was for the advantage of its enemy, and, therefore, unneutral.

There is, however, another type of legislation in relation to the enforcement of neutral duties, which I do not think can be construed into an unneutral act and which it may be advisable, if not necessary, to enact. There are certain obligations as to neutral conduct imposed by treaties, which have never been incorporated in our laws so that the Executive possesses no power to prevent and the courts no power to penalize violations. The result is that, in attempting to enforce these obligations, we are skating on pretty thin ice, and if the authority of the officials should be questioned I am afraid of the result.

Furthermore, some of the penalties imposed by our present statutes are so inadequate that an offender would willingly suffer the penalty for the privilege of violation.

As legislation of this sort, affecting treaty provisions and statutes, would in no way change the rules of neutral conduct but would only confer powers for the proper enforcement of existing rules, there would be no element of unneutrality in its enactment.

The Counselor for the Department of State (Lansing) to President Wilson, Dec. 10, 1914, MS. Department of State, file 763.72111/13321⁄2; I The Lansing Papers, 1914-1920 (For. Rel.: 1939) 180, 181.

At a press conference of September 21, 1939 Secretary Hull said that

most of the progress made in the development of the law of neutrality has been made by acts or steps taken during war. It is common knowledge that belligerents change their rules, practices, methods, and policies in various directions during the progress of hostilities. The law of neutrality has been developed in the direction of recognizing greater rights in the neutral than he was formerly able to assert. If neutrals were required to determine upon their policy in advance of war and in advance of conditions which they cannot possibly foresee, and to hold rigidly to that policy throughout the war while the belligerents are adopting such new policies as they may see fit to adopt, regardless of their damaging effect upon neutrals, determination of the rights and duties of neutrals and belligerents would be left

primarily in the hands of the belligerents. This is not in accord with my understanding of the basic principles of the law of neutrality. It harks back to the days when belligerents regarded neutrals as friends or enemies, depending upon whether they were willing to do the bidding of the belligerent.

I think that you will find from a careful analysis of the underlying principles of the law of neutrality that this Nation, or any neutral nation, has a right during a war to change its national policies whenever experience shows the necessity for such change Protection for the protection of its interests and safety. I do not mean to of interests be understood as saying that such action may be taken at the and safety behest or in the interest of one of the contending belligerents, it being understood, of course, that any measures taken shall apply impartially to all belligerents.

In advocating repeal of the embargo provisions of the so-called neutrality act, we are endeavoring to return to a more rational position and one that is more in keeping with real neutrality under international law. The question whether such proposed action is unneutral should not, in my judgment, be a matter of serious debate. There has never in our time been more widespread publicity and notice in advance of the outbreak of war of a change in our policy than there has in this instance. This Government has given notice for well-nigh a year-at least since the first of the present year-that such a change of policy was in contemplation. Numerous bills were introduced in Congress, long hearings were held in both Houses, and it was generally understood when Congress adjourned that this subject would be on the agenda when it again convened. The President gave notice through a public statement, which would hardly be supposed to have escaped the attention of all governments and people, that if war should occur he would reconvene the Congress for the purpose of renewing consideration by it of the neutrality legislation that was pending as unfinished business when Congress adjourned.

Department of State, I Bulletin, no. 13, p. 280 (Sept. 21, 1939). See also Hearings before the Senate Committee on Foreign Relations, 74th Cong., 2d sess., Jan. 10-Feb. 5, 1936, on S. 3474 regarding Neutrality, pp. 290–291.

The preamble to the joint resolution of November 4, 1939 states

that

the United States hereby expressly reserves the right to repeal, change or modify this joint resolution or any other domestic legislation in the interests of the peace, security or welfare of the United States and its people.

54 Stat. 4.

. . . In the course of a war a neutral State may find it necessary to change its existing neutrality legislation for the better protection of its interests as a neutral or otherwise, or with a view to a more adequate fulfilment of its obligations of neutrality. So long as such changes

...

are made applicable, in principle, to both belligerents, the neutral is, under International Law, free to adopt them at his discretion." II Oppenheim's International Law (6th ed., by Lauterpacht, 1940) 534.