1 This note owes its inception to the fact that the writer holds James Brown Scott’s file of the opinions of the Joint State and Navy Neutrality Board, of which he was the Chairman. When Scott wrote his note about the Board in 1919 (The Neutrality Board, 13 AJIL 308 (1919)), he obviously hoped that someone would write on the opinions of the Board. This has now somewhat belatedly been done.

2 I International Military Tribunal, Trial of the Major war Criminals 312 (1946).

3 50 Parl. deb. H. C. (5th ser.) 1776-77 (March 26, 1913).

4 [1914] Foreign Relations of the United States, Supp. 595, 597 (1928) (hereinafter Foreign Rel.).

In September 1916, the United States insisted on the dismantling of a gun platform erected on the British steamer Crewe Hall at docks in Brooklyn. [1916] Foreign Rel., Supp. 756-57 (1929).

5 On August 10, 1914, James Brown Scott, then editor-in-chief of this Journal and from 1906 to 1911 Solicitor of the Department of State, wrote to his friend Robert Lansing, Counselor of the Department, suggesting the appointment of a State Department representative to confer with the General Board of the Navy in order that the Department might exercise its responsibility in the formulation of neutrality policy. Lansing forwarded Scott’s proposal to Secretary of State Bryan with favorable comment. On August 15, Lansing informed Scott that he had reached an informal understanding with the Secretary of the Navy, Josephus Daniels, that a Joint State and Navy Neutrality Board should be established. Lansing appointed Scott the State Department’s representative on the Board and its chairman. The Navy was represented by Captains Harry S. Knapp and James H. Oliver. Captain Knapp was replaced by Captain William B. Fletcher, December 29, 1916. Scott to Lansing, letter, Aug. 10, 1914; Lansing to Bryan, letter, Aug. 11, 1914; Lansing to Scott, letter, Aug. 15, 1914; The Lansing Papers, Library of Congress. See also Scott, J. B., The Neutrality Board, 13 AJIL 308-10 (1919)CrossRefGoogle Scholar.

The Board was not a policymaking group nor did it tender advice on its own initiative; instead it gave reasoned opinions on problems referred to it by Lansing on his own motion or at the request of other departments. When Lansing became Secretary of State, he continued referring questions to the Board instead of transferring the function to the new Counselor.

For Lansing’s reference of the problem of the Francisco to the Board, see Lansing to Scott, letter, Aug. 16, 1914, Opinion No. 6, Aug. 17, 1914, Opinions of the Joint State and Navy Neutrality Board, National Archives Microfilm Publication M 367, roll 172, herein after cited as M367, 172.

6 Opinion No. 6, supra note 5.

In 1912 the United States Naval War College had considered the conversion of merchant ships into ships of war and had recommended, in a hypothetical case, that a neutral state, which suspected that a merchant ship in its port might after leaving be converted into a naval auxiliary, should require the ship to give a guaranty that it would not change its private character on the high seas or even should intern it if necessary. U.S. Naval War College, International Law Situations with Solutions and Notes, 1912, 159, 192-94 (1912). Scott had called this hypothetical situation to Lansing’s attention in a letter of August 8, 1914. (Copy in author’s possession.)

7 Lansing to Scott, letter, Aug. 18, 1914, at 2-3, Opinion No. 6-bis, Aug. 18, 1914, at 1-2, M367, 172.

8 Lansing to Scott, letter, Aug. 18, 1914, at 1, Opinion No. 8, Aug. 18, 1914; Opinion No. 6-bis (2), Aug. 20, 1914, at 3, M367, 172. For the British communication referred to, see [1914] Foreign Rel. supra note 4, at 598.

9 For the clearance of the Francisco and the Idaho, see Opinion No. 6-bis (3), Aug. 24, 1914, M367, 172.

On September 1, Lansing asked the Board to consider “as a hypothetical case” a statement by a former passenger that the armed ship Adriatic upon clearance would go to Halifax to transport Canadian troops to Britain. The Board replied that, if the Adriatic requested clearance for Halifax to take on troops, clearance should be refused if she had taken on supplies or done other acts within the United States to facilitate such service. Lansing to Scott, letter, Sept. 1, 1914, Opinion No. 21-bis, Sept. 2, 1914, at 4, M367, 172. For the British disclaimer that the Adriatic was to carry troops, see [1914] Foreign Rel. supra note 4, at 605. Details of the Adriatic’s cargo, supplies, passenger list, and destination led the Board to the view that clearance should be given. Opinion No. 21-bis (2), Sept. 3, 1914, M367, 172.

The Merion, which arrived in Philadelphia carrying six guns, was a British vessel belonging to a corporation in which Americans had a substantial interest. The Board called attention to a section of the penal code requiring armed vessels in which Americans had an interest to give bond not to engage in warlike activities. If the Merion fell within this statutory provision, the Board suggested that, in addition to the assurances required in other cases, additional assurances “of a nature to discourage sending to United States ports vessels covered by the statute” might be required. Lansing informed the Board on September 4 that it need not pass on the Merion as the British Government had decided to have the guns dismounted and the ammunition removed. Opinion No. 24, Sept. 4, 1914, at 1-2, Lansing to Scott, letter, Sept. 4, 1914, M367, 172. As to the unpleasantness which ensued when the Merion sailed with its guns mounted, see [1914] Foreign Rel. supra note 4, at 606-7 and Foreign Rel. 1 The Lansing Papers, 1914-1920, at 330 (1939).

10 [1916] Foreign Rel. supra note 4, at 750-52, 754-56, and 756 n. 1; [1917] Foreign Rel. Supp. 1, at 541-42, 545-46 (1931).

11 Lansing to Scott, letter with enclosure, Sept. 10, 1914, Opinion No. 29, Sept. 12, 1914, at 1, M367, 172. For the memorandum issued September 19, 1914, see [1914] Foreign Rel. supra note 4, at 611-12.

12 Lansing to Scott, letter with enclosures, Sept. 5, 1914 (Acting Secretary of the Navy Blue to Secretary of State Bryan, letter, Sept. 3, 1914, and Commander Jackson, Naval War College, to Secretary of the Navy Daniels, memorandum, Sept. 1, 1914), Opinion No. 32, Sept. 19, 1914, at 4, 12, 13, Lansing to Scott, letter with enclosures, Nov. 3, 1914 (Secretary of the Navy Daniels to Secretary of State Bryan, letter, Oct. 23, 1914, and Report of the General Board of the Navy, Oct. 17, 1914), 5, Scott to Lansing, letter, Nov. 4, 1914, M367, 172.

Lansing believed that he had an informal understanding with the British that their merchant ships coming into American ports would not be armed. [1915] Foreign Rel. Supp. 846-51 (1928); Lansing Papers supra note 9, at 330-31.

The General Board of the Navy called attention to the fact that the right to arm merchantmen was embodied in municipal laws and judicial decisions a century old and that since that time there had been “efforts to ameliorate and modify the laws of maritime war,” particularly in the Treaty of Paris of 1856 and the Hague Conventions:

Report of the General Board of the Navy, Oct. 17, 1914, supra, at 2.

13 Opinion No. 41, Oct. 22, 1914, at 9, M367, 172. For the German memorandum, Oct. 15, 1914, see [1914] Foreign Rel. supra note 4, at 613.

14 Lansing to Scott, letter, Feb. 26, 1915, Opinion No. 70, Feb. 27, 1915, at 1-2, 3; Opinion No. 70-bis, March 3, 1915, at 1, M367, 172. For the request of the Cunard Steamship Co. and the United States’ reply, see [1915] Foreign Rel. supra note 12, at 844-45.

15 Lansing Papers, supra note 9, at 330, 331. President Wilson authorized Lansing to prepare but not to issue regulations to this effect, pending the outcome of negotiations with Germany over the sinking of the Arabic. Ibid., 331, 332.

16 [1916] Foreign Rel., supra note 4, at 146-48, 170, 202-04, 223-24.

17 Id. 244, 246.

18 Lansing Papers, supra note 9, at 580.

19 Lansing to Scott, letter, Jan. 17, 1917, Opinion No. 150, Jan. 26, 1917, at 1, 4, 8, 9-10, M367, 176.

In 1939 the United States included among the indications that the armament of a merchant ship would not be used offensively: “1. That the caliber of the guns carried does not exceed six inches and that the number of the guns carried does not exceed four.” 11 Whiteman, , Digest of International Law 308 (1968)Google Scholar.

20 Lansing Papers, supra note 9, at 581, n. 79.

21 In January and February 1917, the United States received several reports of French and British armed merchantmen attacking submarines. [1917] Foreign Rel., supra note 10, at 544-45, 548-49, 550 (1931).

22 In World War I, the Netherlands assimilated belligerent armed merchant ships to warships. 7 Hackworth, , Digest of International Law 497-99 (1943)Google Scholar. In World War II, the Netherlands admitted defensively armed belligerent merchantmen. Whiteman, supra note 19, at 512.

23 Tucker, Robert W., The Law of War and Neutrality at Sea, U.S. Naval War College, International Law Studies, 1955, at 45 (1957)Google Scholar.