the President add many new articles which that law did not ban when that law gave him no authority to change the lists?

The conclusion is inevitable that the President believed that the law of May 1 superseded the law of January 8, as Mr. Stimson claims that it did. No congressional voice was raised in opposition to that conclusion thus publicly evidenced. Great weight, says the Supreme Court, "will be given to the contemporaneous construction by department officials, who were called upon to act under the law and to carry its provisions into effect" (United States v. Hill, 120 U. S. 169). The President's action was contemporaneous and outweighs the contrary position publicly announced 10 months later by Secretary Hull.

One further point: The law of May 1, 1937, provides that "whenever, in the judgment of the President, the conditions which have caused him to issue any proclamation under the authority of this section have ceased to exist, he shall revoke the same.

* *

As already pointed out, the conditions which caused him to issue his proclamations were the existence of the Nonintervention Committee in Europe and the belief that the United States might become involved if it stood out against that cooperative effort and thus caused its defeat.

The effort has been defeated by Mussolini and Hitler; the basic conditions have changed and the revocation of the embargo by the President would be fully in accord with the statute. It would further mark a return to our historic policy of avoiding intervention in European civil wars by following a strict hands-off policy instead of taking affirmative action which, as events have demonstrated, inevitably affects the outcome of a struggle in which we profess not to be concerned.

NEW YORK, January 30, 1939.

CHARLES C. BURLINGHAM.
PHILIP C. JESSUP.

[Letter of Henry Breckinridge to New York Times, October 1, 1939]

LIFTING EMBARGO HELD NOT UNLAWFUL

VIEWS OF DRS. JESSUP AND HYDE DECLARED CONTROVERTED BY THE FORMER'S PREVIOUS

EXPRESSIONS

To the Editor of the New York Times:

In your issue of September 21 was published the joint letter of Charles Cheney Hyde and Philip C. Jessup on the question of removing the existing embargo on munitions to belligerent countries.

On January 30, 8 months ago, Dr. Philip C. Jessup wrote another letter which was published in the New York Times and to which reference will be made later in this communication. Charles C. Burlingham was a cosigner of that letter. It is unpleasant to read Dr. Jessup's drastic comment in his recent letter on the action proposed to the Congress by the President. It would be "unneutral and is contemptuous of the legal duty which the law of nations imposes upon every neutral sovereign." Again, he characterizes it as "illegal as well as unneutral." He suggests, in speaking of his country, "it cannot at this time relax its embargoes without besmirching its character as an advocate of international justice."

With great respect I differ with Mr. Jessup, and my difference of opinion is based largely on what I glean from his own writings or the precedents which from time to time he has so voluminously collected. In his letter published in the Times of September 21 he speaks with a dogmatism and finality supported, so far as I can learn, neither by the precedents of his own collection nor by the official admission at any time of any officer of the United States throughout its history acting on a specific case requiring a formal stand by our Government.

PREVIOUS STUDY CITED

Fortunately for us less-informed citizens, as recently as July 1939, Dr. Jessup, as a reporter for the Research in International Law Under the Auspices of the faculty of the Harvard Law School, gave us a fat tome on the Rights and Duties of Neutral States in Naval and Aerial War. Whether or not Dr. Jessup agrees entirely with the comments in this book I cannot say, because the book has an

introductory comment. This tells us that there is fundamental differences of opinion among the compilers of the book and that its contents are not presented to its readers as reflecting even a consensus of the advisory committee.

Many interesting things appear in Dr. Jessup's report of July 1939. For example, the Thirteenth Hague Convention of 1907, article 7, is quoted as follows: "A neutral power is not bound to prevent the export or transit for the use of either belligerent of arms, ammunition or, in general, of anything that could be of use to an army or fleet."

Again, "The neutral laws of the United States never forbade the export of contraband until 1935."

It may help our minds to recall that portion of Dr. Jessup's draft convention cited by Dr. Clyde Eagleton in his letter published in the Times on September 25. I quote: "A neutral state, for the purpose of better safeguarding its rights and interests as a neutral, may during the course of a war adopt new measures or alter the measures which it has previously adopted, provided, however, that the new measures adopted do not violate any provision of this convention." Why it may reasonably be asked, does Professor Jessup so blandly conclude that the proposed changes are not "for the purpose of better safeguarding its rights and interests as a neutral"?

Dr. Jessup cites the comparable text of the Thirteenth Hague Convention of 1907: "Preamble. Seeing that, in this category of ideas, these rules should not in principle be altered in the course of a war by a neutral power except in a case where experience has shown a necessity for such change for the protection of the rights of that power."

RIGHTS DEFINED

And article 26 of that same Hague convention, "The exercise by a neutral power of the rights laid down in the present convention can under no circumstances be considered as an unfriendly act by one or other belligerent who has accepted the articles relating thereto."

Thus, never before 1935 did the neutrality laws of the United States forbid the export of contraband. New legislation restricted the normal rights of American citizens under international law and the common-sense interpretation of The Hague Convention of 1907 is that this legislation can be changed while a war is in progress, and under no circumstances can it be considered an unfriendly act by belligerents. This is true, unless Professor Jessup can sustain his contention from clear authority that a neutral power can only change the status after the outbreak of hostilities by still further restriction and may not relax any preexisting restriction.

What is the American history on the subject? During the Napoleonic wars with England, while hostilities were in progress, we imposed and raised embargoes. Reference to the action of our Government in 1794, 1797, 1807, 1809, and 1812 is sufficient proof of this. Most of this action was unwise, but would Dr. Jessup say it was illegal, dishonorable, and unjust?

The joint resolution of 1935 amended our neutrality laws at the outset of the Italo-Ethiopian War and the joint resolution of 1936 did likewise while the Italo-Ethiopian War was in progress. But Dr. Jessup would retort that these were restrictive and not relaxing actions.

During the World War, Secretary Lansing in one of his notes to the AustroHungarian Government on the arms export question wrote: "The right and duty to determine when this necessity exists rests with the neutral, not with a belligerent. It is discretionary, not mandatory. If a neutral power does not avail itself of the right, a belligerent is not privileged to complain.

Admiral Sperry, an American representative at The Hague Conference of 1907, in speaking of the point now under discussion, stated that, "All the acts performed by a neutral state in fulfillment of its duties of neutrality are performed by its own authority and not for the purpose of fulfilling a duty or granting a favor to one or the other of the belligerents."

COMMENT ON REPORT

Referring again to Dr. Jessup's report at the bottom of page 318 and the top of 319. Speaking of article 13 of his proposed Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War, his comment is, "From the

point of view of the principle embodied in this article, it is immaterial whether the new rule is thus intended to perfect the performance of a neutral duty or whether it is intended to exercise a neutral privilege for the sake of further protecting neutral rights and interests."

"Nevertheless, the text does not go so far as to say that no relaxation of a rule would ever be permissible." This is the comment of Dr. Jessup's report upon his own proposed article 13, which gives a neutral the right to change the status after the outbreak of hostilities.

Again I quote from Dr. Jessup's report: "Fear that changes during war might be considered unneutral apparently carried no weight in the United States during the eighteenth century." Why should it in the twentieth century?

It is admitted that we are dealing with a question obscured by the varying positions taken by nations as dictated from time to time by their self-interest. This is true of much in international law.

But surely the burden of proof must be upon those who deny the right of the United States to pass any neutrality law either of restriction or of relaxation that does not violate the well-established rules of international law.

Respectfully do I invite Dr. Jessup to cite one authentic instance in which the Government of the United States has admitted the right of any foreign power to restrict its rights of action as a neutral as long as its action does not assert some unprecedented privilege for itself or its citizens. This is the stand taken by Lansing to Austria-Hungary. It is the stand taken by Sperry as one of our representatives at the Hague Conference of 1907.

Now let us come to the other letter of Dr. Jessup printed in the Times of January 30. It will be recalled that this was just before the total collapse of the Loyalist Government under the onslaughts of Franco and after 21⁄2 years of civil war. Candor compels the admission that Dr. Jessup fell back on the technical fact that the United States had never recognized the belligerency of either party to this civil war, and that, therefore, the United States was not technically bound by the laws of neutrality.

CONTRARY ACTION SEEN

But as a practical matter, he was advocating that the President lift the embargo on arms to Loyalist Spain that there might flow from our shores, 21⁄2 years after the outbreak of hostilities, a stream of arms and munitions to succor the Loyalist armies in their desperate plight. That was an eloquent and closely reasoned appeal to change the status after hostilities had commenced. In January he was urging the exact action in behalf of the Loyalists that he now deplores because it would be unneutral and unjust. He justified his stand on arms to Spanish Loyalists by saying there was no formal war.

With great sincerity and facility Dr. Jessup found the lawyer's reasons to help those whose cause he then espoused. It is interesting to see the same mind now weaving a less tenable thread of argument to the advantage of Nazi interest and to the disadvantage of the western democracies.

His reason for raising the embargo at the eleventh hour to Loyalist Spain was stated by him as follows: "It would further mark a return to our historic policy of avoiding intervention in European civil wars by following a strict hands-off policy instead of taking affirmative action which, as events have demonstrated, inevitably affects the outcome of a struggle in which we profess not to be concerned." This hands-off policy then was to lift the embargo and to permit the shipment of arms to the losing faction of the Spanish civil war. His hands-off policy now would insure that England and France could get no arms from here. for ye pay tithe of mint and anise and cummin: and have omitted the weightier matters of the law, judgment, mercy, and faith: these ought ye to have done, and not to leave the other undone.

"Ye blind guides, which strain at a gnat and swallow a camel."

NEW YORK, September 28, 1939.

HENRY BRECKINRIDGE.

Senator MCCARTHY. May I see that item you are putting in the record, so I will know what it is?

Senator FULBRIGHT. Now, Mr. Chairman, if I understand the witness' theory, it is that this committee lifted a statement which was printed in the New York Times and printed it in one of their own publications. That statement which is shown in the exhibit is very similar to the one Mr. Stimson wrote. I think to make the record complete I should read it. It sounds very similar. I quote:

This embargo against Spain was thought to be neutrality legislation, but it seems more likely the precise opposite. Any danger that may come to the people of the United States from the situation in Spain will arise not from any lawful restrictions but from the assistance which our embargo has given to the enemies of Spain.

It seems to me it is rather slim evidence that he had any connection with it, any more than Mr. Stimson had, and in this case their views seem to be in accord.

Senator MCCARTHY. Let me answer the Senator. I hope the Senator hasn't lost sight of the important point, and that is that the man who said it is illegal, unneutral, immoral-I am not sure that that is the exact language, but roughly that--to ship arms to England advocated the shipping of arms to Communist Spain. This great international lawyer could see nothing illegal about the shipment of arms to the Communist-controlled section of Spain, and that is the very, very important point here, and I hope the Senator keeps that in mind, not again as an isolated point but as part of the devious activities of this man which we will divulge as we go along.

I am sorry, Senator; I interrupted you.

Senator GILLETTE. Mr. Chairman, may I ask a question?
Senator SPARKMAN. Senator Gillette?

PURPOSE OF M'CARTHY'S PRESENTATION

Senator GILLETTE. Senator McCarthy, as I understood the purpose of your presentation here in your opening statement, it is to show by varied connections with a number of subversive organizations that the cumulative effect would be, in your opinion, to show the unfitness of Mr. Jessup for the nomination that has been sent to the Senate. Is that your purpose?

Senator MCCARTHY. That is the purpose exactly, Senator.

Senator GILLETTE. Then we have reached No. 3, and I ask you the question. Is there anything that you have to present that shows Mr. Jessup's connection with this coordinating committee to lift the embargo which is cited as one of these organizations, other than the excerpt that you have presented here on page 6?

Senator MCCARTHY. Only the reproduction, Senator, of his statement here; and, as I say, I consider that of great importance in view of the opposite position which he took on England, the same position which every Communist-front organization has taken. That is what makes this significant.

Your question is, "Do I know anything about whether he sponsored this organization? Was he a member of it?" The answer is "No."

"Do I know whether he gave them permission to publish this?" The answer is "No."

But I think we can assume that they had permission, because they were fighting for the same thing. Their aims were identical. Jessup says, "Ship materials to the Communists in Spain." This organization, according to the committee, was set up by the Communist Party, and was advocating the same thing.

I may say, Senator, that had Jessup advocated the same position insofar as England was concerned during the Nazi-Stalin pact, I would not have considered this particular point of sufficient import to present it to the committee. You must take the two items together. Senator GILLETTE. Of course, Senator, the members of the committee, I am sure, understand that and will evaluate it. My question is that there is nothing that you have to present connecting him with this organization other than this excerpt which you have presented, for the value that you feel it has?

Senator MCCARTHY. I think, Senator, I have been clear. I will be glad to go over it again. I said, the reproduction of this excerpt in their publication is the only connection which I intend to present to the committee that Jessup has with this organization. But keep in mind that in connection with that I have presented his position on England and his long-time position on Spain.

Senator SPARKMAN. Now, Senator McCarthy, I don't care about belaboring this point further. I think you have made your point clear that in this case it is the attitude expressed by Mr. Jessup, rather than his connection with any organization.

Senator MCCARTHY. No. It is the reproduction of his works by a Communist front which was right smack down along their line.

Senator Sparkman, it is entirely possible that this outfit reproduced Jessup's comments without his permission. As I say, this would not be given to the committee as one link in the chain of evidence except insofar as it indicates that here is an organization set up for the purpose of accomplishing the purposes which Jessup advocates; and couple with that the fact that he makes a complete turnabout in international law insofar as England is concerned, during the Hitler-Stalin pact, and the Senator will recall this, that after Hitler invaded Russia, Jessup's position then switched also to all-out aid immediately. That then becomes significant.

Let me say this, Senator. I hate to take your time on this. But you can't identify a man's loyalty to the Communist cause by one isolated act. You have to follow him over a period of years. If you find the Communist line changes suddenly and unexpectedly and if you find he follows that Communist line invariably, then you can assume either that there is something wrong with him or he is loyal to the Communist cause.

Senator SPARKMAN. I realize that is the argument you are making, and you are trying to show these different cases. However, looking at this as a lawyer-I am a lawyer and you are a lawyer are you insisting that the mere reproduction of this one single sentence from a very long letter that Mr. Jessup wrote to the New York Times, by an organization which is a Communist-front organization, ties him in with that organization? I just don't see how you can insist on that, any more than you would insist that the same thing was true, for instance, of Republican members of the Foreign Affairs Committee who, in their report to Congress, recommended the same thing.

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