and air bases, it is my opinion that the Chief of Naval Operations may, and should, certify under section 14 (a) that the destroyers involved are not essential to the defense of the United States if in his judgment the exchange of such destroyers for such naval and air bases will strengthen rather than impair the total defense of the United States.

I have previously indicated that in my opinion there is statutory authority for the acquisition of the naval and air bases in exchange for the vessels and material. The question was not more fully treated at that point because dependent upon the statutes above discussed and which required consideration in this section of the opinion. It is to be borne in mind that these statutes clearly recognize and deal with the authority to make dispositions by sale, transfer, exchange or otherwise; that they do not impose any limitations concerning individuals, corporations or governments to which such dispositions may be made; and that they do not specify or limit in any manner the consideration which may enter into an exchange. There is no reason whatever for holding that sales may not be made to or exchanges made with a foreign government or that in such a case a treaty is contemplated. This is emphasized when we consider that the transactions in some cases may be quite unimportant, perhaps only dispositions of scrap, and that a domestic buyer (unless restrained by some authorized contract or embargo) would be quite free to dispose of his purchase as he pleased. Furthermore, section 14 (a) of the act of June 28, 1940, supra, was enacted by the Congress in full contemplation of transfers for ultimate delivery to foreign belligerent nations. Possibly it may be said that the authority for exchange of naval vessels and material presupposes the acquisition of something of value to the Navy or, at least, to the national defense. Certainly I can imply no narrower limitation when the law is wholly silent in this respect. Assuming that there is, however, at least the limitation which I have mentioned, it is fully met in the acquisition of rights to maintain needed bases. And if, as I hold, the statute law authorizes the exchange of vessels and material for other vessels and material or, equally, for the right to establish bases, it is an inescap

able corollary that the statute law also authorizes the acquisition of the ships or material or bases which form the consideration for the exchange.

III

Whether the statutes of the United States prevent the dispatch to Great Britain, a belligerent power, of the so-called "mosquito boats" now under construction or the over-age destroyers depends upon the interpretation to be placed on section 3 of title V of the act of June 15, 1917, c. 30, 40 Stat. 217, 222. This section reads:

"During a war in which the United States is a neutral nation, it shall be unlawful to send out of the jurisdiction of the United States any vessel built, armed, or equipped as a vessel of war, or converted from a private vessel into a vessel of war, with any intent or under any agreement or contract, written or oral, that such vessel shall be delivered to a belligerent nation, or to an agent, officer, or citizen of such nation, or with reasonable cause to believe that the said vessel shall or will be employed in the service of any such belligerent nation after its departure from the jurisdiction of the United States."

This section must be read in the light of section 2 of the same act and the rules of international law which the Congress states that it was its intention to implement. (H. Rept. No. 30, 65th Cong., 1st sess., p. 9.) So read, it is clear that it is inapplicable to vessels, like the over-age destroyers, which were not built, armed, equipped as, or converted into vessels of war with the intent that they should enter the service of a belligerent. If the section were not so construed, it would render meaningless section 2 of the act which authorizes the President to detain any armed vessel until he is satisfied that it will not engage in hostile operations before it reaches a neutral or belligerent port. The two sections are intelligible and reconcilable only if read in light of the traditional rules of international law. These are clearly stated by Oppenheim in his work on International Law, 5th ed., vol. 2, sec. 334, pp. 574-576:

"Whereas a neutral is in no wise obliged by his duty of impartiality to prevent his subjects from selling armed vessels to the belligerents, such armed vessels being merely contraband of war, a neutral is bound to employ the means at his disposal to prevent his subjects from building, fitting out, or arming, to the order of either belligerent, vessels intended to be used as men-of-war, and to prevent the departure from his jurisdiction of any vessel which, by order of either belligerent, has been adopted to warlike use. The difference between selling armed vessels to belligerents and building them to order is usually defined in the following way:

"An armed ship, being contraband of war, is in no wise different from other kinds of contraband, provided that she is not manned in a neutral port, so that she can commit hostilities at once after having reached the open sea. A subject of a neutral who builds an armed ship, or arms a merchantman, not to the order of a belligerent, but intending to sell her to a belligerent, does not differ from a manufacturer of arms who intends to sell them to a belligerent. There is nothing to prevent a neutral from allowing his subjects to sell armed vessels, and to deliver them to belligerents, either in a neutral port or in a belligerent port.

"On the other hand, if a subject of a neutral builds armed ships to the order of a belligerent, he prepares the means of naval operations, since the ships, on sailing outside the neutral territorial waters and taking in a crew and ammunition, can at once commit hostilities. Thus, through the carrying out of the order of the belligerent, the neutral territory has been made the base of naval operations; and as the duty of impartiality includes an obligation to prevent either belligerent from making neutral territory the base of military or naval operations, a neutral violates his neutrality by not preventing his subjects from carrying out an order of a belligerent for the building and fitting out of men-of-war. This distinction, although of course logically correct, is hairsplitting. But as, according to the present law, neutral States need not prevent their subjects from supplying arms

and ammunition to belligerents, it will probably continue to be drawn."

Viewed in the light of the above, I am of the opinion that this statute does prohibit the release and transfer to the British Government of the so-called "mosquito boats" now under construction for the United States Navy. If these boats were released to the British Government, it would be legally impossible for that Government to take them out of this country after their completion, since to the extent of such completion at least they would have been built, armed, or equipped with the intent, or with reasonable cause to believe, that they would enter the service of a belligerent after being sent out of the jurisdiction of the United States.

This will not be true, however, with respect to the over-age destroyers, since they were clearly not built, armed, or equipped with any such intent or with reasonable cause to believe that they would ever enter the service of a belligerent.

In this connection it has been noted that during the war between Russia and Japan in 1904 and 1905, the German Government permitted the sale to Russia of torpedo boats and also of ocean liners belonging to its auxiliary navy. See Wheaton's International Law, 6th ed. (Keith), vol. 2, p. 977.

IV

Accordingly, you are respectfully advised:

(a) That the proposed arrangement may be concluded as an Executive agreement, effective without awaiting ratification.

(b) That there is Presidential power to transfer title and possession of the proposed considerations upon certification by appropriate staff officers.

(c) That the dispatch of the so-called "mosquito boats" would constitute a violation of the statute law of the United States, but with that exception there is no legal obstacle to the consummation of the transaction, in accordance, of course, with the applicable provisions of the Neutrality Act as to delivery.

Respectfully,

ROBERT H. JACKSON.

APPORTIONMENT OF NON-CIVIL-SERVICE EMPLOYEES

Where the required computation under the State quota provision of the Appropriation Act of June 26, 1940, indicates that a State is entitled to a fractional part of an employee, one employee may be appointed. Referees and arbitrators appointed by the National Mediation Board are not to be regarded as "employees" and are not subject to the State quota provision.

The PRESIDENT.

AUGUST 28, 1940.

MY DEAR MR. PRESIDENT: I have the honor to comply with your request of August 26 for my opinion on the following questions submitted by the Chairman of the National Mediation Board.

"(1) Do the State quota provisions of Section 702, Labor-Federal Security Appropriation Act, 1941, apply to the selection of referees and arbitrators whose salaries are paid from appropriations provided in said act, for temporary service to render awards in specific cases under the provisions of the Railway Labor Act?

"(2) In the filling of non-civil-service positions, as contemplated in section 702 of the Labor-Federal Security Appropriation Act, 1941, may staff employees or referees and arbitrators, if adjudged within the provisions of the act, be appointed from a State which is entitled under its quota to only a fractional part of an employee; if so, must the fraction be in excess of one-half before an appointment therefrom can be made?"

Section 702 of the Appropriation Act of June 26, 1940 (c. 428, 54 Stat. 574, 597), to which reference is made by the Chairman, reads as follows:

"None of the funds appropriated in this act shall be used to pay the salary of any person appointed to a non-civilservice position, under the appropriations in the respective titles in this act, if the effect of such appointment is to increase the number of non-civil-service employees from the State of residence of any such non-civil-service appointee beyond the number of non-civil-service employees to which such State is entitled, under the appropriations in the respective titles of this act, on a basis of population: