In conclusion I hope that, with proper modesty, I may quote briefly from an editorial printed a few days ago in the Fort Wayne News-Sentinel, one of the leading newspapers of our State, a newspaper which I respect highly, though it is not of my political faith. The editorial says in part:

One and only one bill before the Congress at this time (or more accurately speaking) before the House Committee on Foreign Affairs, has even a reasonable probability, if enacted, of assuring American neutrality in a foreign war. That bill (H. R. 163) was introduced last January 3 by Representative Louis Ludlow, Democrat, of Indiana.

If it is neutrality the American people want, then they should by all means demand that their Congress enact H. R. 163. No other pending measure so simply, clearly, and straightforwardly provides for American neutrality, makes a policy of neutrality mandatory upon the people and their President, and thereby lessens the risks of all that war must mean.

(Whereupon at 12:30 o'clock the committee recessed to reconvene on the following morning, at 10 a. m., April 25, 1939.)

AMERICAN NEUTRALITY POLICY

TUESDAY, APRIL 25, 1939

HOUSE OF REPRESENTATIVES,

COMMITTEE ON FOREIGN AFFAIRS,

Washington, D. C.

The committee met at 10 a. m., Hon. Sol Bloom (acting chairman) presiding, for further consideration of bills to amend the Neutrality Act.

Mr. BLOOM. The committee will please come to order.

The first witness this morning is Prof. Harold J. Tobin, assistant professor of political science, Dartmouth College, Hanover, N. H., and a favorite constituent of our fellow member, Mr. Stearns. Mr. Tobin, the committee will be pleased to hear you.

STATEMENT OF HAROLD J. TOBIN, PROFESSOR OF POLITICAL

SCIENCE, DARTMOUTH COLLEGE, HANOVER, N. H.

Mr. TOBIN. I expect to confine what I have to say to a discussion of the effect of existing and proposed neutrality legislation on certain aspects of our defense policies, which seem sufficiently important to be considered when new legislation is drafted. My remarks are based on the assumption that foreign nations will act on the principle that any neutrality legislation is definitely to be applied to reduce possible contacts between Americans and belligerents, except in the case of the Thomas amendment, which, if enacted, will cause the United States itself to judge whether those contacts shall be broken with both belligerents or not.

The first of the points to be considered is the necessity of assuring possession of an adequate supply of strategic materials for our own use in time of war. A general European war would naturally increase the feeling that we should have an adequate supply, due to the possibility of our being drawn in. Our ships would drive into the very zones we wish to avoid in search of these supplies. The list of strategic materials is familiar to all of you; I want merely to indicate situations when, due to neutrality legislation, we might have difficulty in maintaining an essential supply.

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Let us suppose, for example, that war breaks out involving Great Britain, or Japan, or Italy, and the present act is applied. We would have to shut off the supply of arms, munitions, and airplanes; Ameriships would be forbidden to carry to the belligerents these or other articles placed on the prohibited list; nothing could be sold except for cash: no loan could be floated here. These measures would seriously affect Great Britain, perhaps very seriously and immediately in the matter of airplanes. She would not be without redress, however.

Within her empire are found the principal supplies of at least five of the strategic materials essential to our own defense; tin, rubber, sheet mica, chromium, and nickel. The last two are found in her dominions, and if the dominions maintained their neutrality we would presumably not apply the act to them. The other three materials are found, however, in the British colonies whose actions are determined by Great Britain alone and the threat by Great Britain of an embargo on shipments to America of these items would be embarrassing, and perhaps not unjustifiable in a life and death struggle. The dangers from this retaliatory embargo are somewhat mitigated by the fact that by any annex to the trade agreement the parties undertake to give sympathetic consideration to each other's raw material needs, and not to cut off the supply of such material without notice and opportunity for a hearing. But at best this could result only in a deal at the expense of the full application of the act. Italy, with the cooperation of Spain, can practically deprive us of mercury. A far eastern war, if the act were applied, might be used by Japan to deprive us of silk, and by control of China's exports, of antimony and tungsten also.

Problems of greater importance, however, are involved in our relations with the Latin American states. A provision of the present neutrality law exempts them from its operation when they are engaged in war against a non-American state. But this exemption does not apply in case of war among themselves, or in case of civil war within any one of them. The United States does not at this time wish to encourage the development of closer economic or political ties between Latin-American and non-American states at its own expense, yet in case of either type of war the operation of the present law would drive them to strengthening their overseas ties. Again, we would have to shut off the supply of arms, ammunition, and airplanes; American ships could carry them no articles on the prohibited list; nothing could be sold except for cash; no loans could be floated here, even at such a time when they were most needed.

A Latin-American state, attempting to suppress a Fascist rebellion, might find itself in the position of the Spanish Loyalists, so far as American supplies are concerned; but it is unlikely that European states would refuse them. The suggested program permitting Latin-American states to build ships in American yards would strike a serious snag. The influence of the United States in the development of aviation in these countries would be similarly affected. We have recently made a trade agreement with Brazil which provided that we will make a gold loan on application. If Brazil finds herself engaged in war with another Latin-American state or is attempting to suppress a revolution, this credit under the present act and barring any other treaty provision would be refused.

The changes offered under the Thomas amendment and the Pittman bill are only partial remedies for the difficulties mentioned. The first paragraph of the Thomas amendment prevents the export on any vessels of any items, a provision further restricting the possible aid we might render a Latin-American belligerent. The second paragraph permits a distinction in applying the act between belligerents, but makes none between the parties in civil strife. But States can not always know in advance whether they will fall in the category of treaty violators or not, and it will be much safer therefore for them to make their commercial and financial connections elsewhere, where there will be less uncertainty.

The Pittman bill makes no differentiation between belligerents and calls for no action in case of civil war, but it is much more rigid in its provisions for prevention of any commercial or financial intercourse with belligerents, and would be subject to the same objections on this score as the present legislation, and to a greater degree. Section 3 (a) of this bill gives the President power to prevent American vessels from proceeding through areas of combat operations. The application of this provision to the East Indies-a likely area of hostilities should war occur in the Far East—would make it impossible for American ships to transport to the United States such essential supplies as rubber and tin.

The simplest solution for the strategic materials problem appears to be the enactment of such stock pile legislation as that now before this House, which frees us temporarily at least from the need to carry on commerce in these materials in time of overseas war at almost any risk.

Perhaps the simplest way to meet the objections concerning Latin America in drafting neutrality legislation would be to exempt that area completely from the application of its provisions; we have already done so in the case of war between a Latin-American and a nonAmerican state. If this were done, the act of 1922 permitting Executive discretion in placing embargoes on arms and ammunition would permit our favoring the legitimate government against a rebel movement, or vice versa. In case of international war in the area, the traditional rules of international law would apply, and we would have to treat the belligerents alike. If this solution is not satisfactory, we might consider legislation specially adapted to our relations with these States, a problem which should be simpler to solve than that involved in planning a policy to meet any situation arising anywhere in the world.

It is difficult sometimes to keep in mind that neutrality is the condition of a State which is not a belligerent, and that being a neutral requires identical treatment for opposing belligerents. The present act was intended to do this, with the exception favoring LatinAmerican states at war with non-American states. If such exceptions in the Latin-American field are to be made, it is perhaps wise to give the matter of policy deliberate thought, and make our law conform to our policy. If, as under the Thomas amendment, we are to undertake the task of an international judge, it would be wise to put ourselves in as strong a position as possible concerning our war supplies, and eliminate as far as possible the need to send American ships for vital materials in time of war.

Mr. BLOOM. Are there any questions?

Mr. VoRYS. I did not get, Professor, just what form of neutrality law you would recommend.

Mr. TOBIN. Well, you did not get it because I precisely ducked that question.

Mr. VORYS. That is the question that we want to get the answer to. Mr. TOBIN. I can give you some ideas concerning this, as to what seems to me to be the risks in almost any kind of legislation which could be put through. The great difficulty, as I see it now, is the fact that the question of policy and law are so badly tangled, it is a good deal like recognition. There is supposed to be a law governing this sort of thing, which I have tried to cover in the last paragraph.

Mr. BLOOM. You mean international law?

Mr. TOBIN. Yes; international law. If international policy is to be substituted for international law, it means that you are legislating policy in a field which I have always understood to be more under the jurisdiction of the Executive than would be possible if such legislation were put in.

Mr. VORYS. How is that?

Mr. TOBIN. If any neutrality legislation is passed, it seems to me that it must be on the basis of policy rather than of law, because we have sufficient law now to meet situations such as have arisen in the past. If legislation is passed, it takes, it seems to me, out of the hands of the Executive, a discretion which is his, at least by constitutional interpretation, if not in the Constitution itself, and makes this policyforming function performed partially by the legislative branch rather than by the Executive.

Mr. VORYS. Now, you do not mean that, aside from legislation, the President has any power to embargo shipments of exports, do you? Mr. TOBIN. Well, in the embargo on shipments of exports, he has a certain discretion under the act of 1922 in regard to the LatinAmerican States.

Mr. BLOOм. Suppose the act were not there?

Mr. TOBIN. No; as far as I know it could not be done.

Mr. VORYS. The President has no power to lay an embargo without legislative authority, has he?

Mr. TOBIN. Not so far as I know. I know of no case.

Mr. VORYS. And he has no power to enforce cash and carry, without legislative authority?

Mr. TOBIN. No; of course not.

Mr. VORYS. Now, any sort of statute is going to be unilateral; it is not going to be an international law, because it is a one-sided affair; a self-denial statute, is it not?

Mr. TOBIN. Yes; that is quite true, so far as it is a self-denial

statute.

Mr. VORYS. And insofar as that, the President has not authority to do that without congressional action, has he?

Mr. TOBIN. No; I would not say so.

Mr. VORYS. So that we cannot have any neutrality action or peace action of the self-denial type without legislative action, can we? Mr. TOBIN. No; I think that you are probably right.

Mr. SHANLEY. As I understand it, the so-called neutrality in your point of view, is an attempt to carve out from the wide field of Presidential powers certain elements that you think ought to be encroached upon. In other words, we took the arms and munitions and implements of war in the simple 1935 act out from under the usages of international law. Of course the President was bound to act in an unbiased way toward both nations, but we deliberately carve that out of his prerogative, so that neutrality in this aspect as it is commonly understood, is really a carving not only of the Presidential power but a carving out of international law.

Mr. TOBIN. Yes; that is precisely the objection that I was going to make, in case I did not make myself clear.

In other words, that is, as soon as the legislative action affects international law, I feel that it is there an encroachment, that is, anything which we do in the form of self-denial which applies equally