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Borchard, Edwin Montefiorefree

(17 October 1884–22 July 1951)
  • Michael S. Mayer

Borchard, Edwin Montefiore (17 October 1884–22 July 1951), professor of international law, was born in New York City, the son of Michaelis Borchard and Malwina Schachne. His father was a prosperous Jewish merchant, and Borchard enjoyed the benefits of a highly cultured upbringing. He attended City College of New York from 1898 to 1902, after which he earned an LL.B., cum laude, from New York Law School (1905), a B.A. from Columbia College (1908), and a Ph.D. from Columbia University (1913). Borchard married Corinne E. Brackett in 1915; the couple had two daughters.

Even before completing his Ph.D., Borchard embarked on a distinguished career in international law. In 1910 he advised the American delegation during the North Atlantic Coast Fisheries Arbitration at The Hague, Netherlands. He served as law librarian of Congress from 1911 to 1913 and from 1914 to 1916. In between, he was assistant solicitor for the Department of State. He worked as an attorney for the National City Bank of New York from 1916 to 1917.

Borchard became professor of law at Yale University Law School in 1917 and ten years later was appointed Yale’s Justus H. Hotchkiss Professor of Law, a position he held until he retired in 1950. He continued to serve, however, in a variety of government positions. He was chief counsel for Peru in the Tacna-Arica dispute from 1923 to 1925. President Calvin Coolidge appointed him to the Central American Arbitration Tribunal in 1925. Borchard was technical adviser to the American delegation at The Hague Codification Conference in 1930 and served on the Pan American Committee of Experts for the Codification of International Law in 1938. He also advised various government departments and agencies.

Among his academic honors, in 1925 Borchard became the first American professor to lecture at the University of Berlin after World War I. He also lectured at the International Academy of Law at the Carnegie Peace Palace at The Hague. He served on the board of editors of the American Journal of International Law, a publication to which he frequently contributed, from 1924 until his death.

In addition to his scholarship, Borchard was an activist who in several of his writings influenced American civil justice. Declaratory Judgments (1934) argues that courts should be permitted to issue declaratory judgments, which establish the rights of parties or express the opinion of the court on questions of law without ordering anything to be done or granting any remedy. The declaration of preexisting rights of litigants would, Borchard argued, remove legal uncertainty before the occurrence of an actual loss or injury. He lobbied strenuously and successfully for passage in 1934 of the Declaratory Judgments Act. Convicting the Innocent (1932) consists of case histories of innocent men found guilty of major crimes. In it, Borchard called for restitution for those wrongly convicted and for appellate review of the facts as well as the law in cases of felony or at least in capital cases. The book’s publication contributed to the passage of a federal law granting relief to individuals wrongly convicted in U.S. courts. In recognition of Borchard’s role, Franklin D. Roosevelt presented him with the pen the president had used to sign the legislation.

A recognized and influential authority on diplomatic protection for alien citizens and property, Borchard advocated the compulsory submission of foreign claims to international tribunals. He addressed these issues in The Diplomatic Protection of Citizens Abroad (1915), which still remained the standard work on the subject at the time of Borchard’s death, and in a two-volume work written with William H. Wynne, State Insolvency and Foreign Bondholders (1951).

Borchard was best known for his advocacy of traditional neutrality, which he defined as a compromise between the claims of a belligerent to stop all trade with its enemy and the claims of a neutral to trade freely. In return for permission to trade in nonmilitary goods, the neutral nation would agree to permit the belligerent to capture, if it could, military goods destined for its enemy.

During the interwar years, Borchard was an active noninterventionist and a harsh critic of the Roosevelt administration. Borchard had criticized President Woodrow Wilson and his secretary of state Robert Lansing for failing to remain neutral and thereby leading America into World War I. He expressed these views in Neutrality for the United States (1937), written with William Potter Lage. Borchard opposed discriminatory arms embargoes and cooperation against aggression as flagrant breaches of neutrality. Neutrals, he believed, should trade openly and without preference. He supported the America First Committee but rejected the abdication of neutral rights proposed by the so-called “new neutrality.” For Borchard, requiring belligerent nations to pay cash and carry goods on their own ships constituted a surrender of historically established neutral rights. Moreover, Borchard worried that discriminatory embargoes and presidential discretion would not only fail to prevent war but would make American involvement more likely. In addition, he argued, prohibiting all trade with belligerents would have disastrous effects on the American economy.

Throughout the 1930s Borchard corresponded with a number of influential noninterventionists in Congress. When Roosevelt ordered American ships to shoot Nazi submarines on sight after the Greer incident, Borchard joined fifty-seven other prominent noninterventionists in signing a statement condemning Roosevelt’s policies. Borchard saw American entry into the Pacific war as an imperial venture, and he continued to oppose American foreign policy during World War II and the Cold War. For example, he regarded the Yalta accords and the Truman Doctrine as wrongheaded commitments to unlimited intervention.

A demanding teacher, Borchard was accessible to his students and willing to use his extensive contacts in law and government to place them. A rigorous, if not rigid, scholar, he was, nonetheless, approachable and sociable. He acted on his beliefs by serving on the national committee of the American Civil Liberties Union and by donating generously to antifascist refugees. His death, in Hamden, Connecticut, came after a lingering and painful illness. Borchard remains best known for his unwavering adherence to a legalistic and perhaps anachronistic notion of neutrality.

Bibliography

Borchard’s papers are at the Yale University Library. Works by Borchard not cited above include Guide to Law and Legal Literature of Germany (1911); Bibliography of International Law and Continental Law (1913); Commercial Laws of England, Scotland, Germany, and France (1915), with A. J. Wolfe; Guide to the Law and Legal Literature of Argentina, Brazil and Chile (1917); Latin American Commercial Law (1920), with T. Esquivel Obregón; and American Foreign Policy (1946). He translated into English and wrote an introduction to Pasquale Fiore, International Law Codified (1917; trans. 1918). Along with Joseph F. Chamberlain and Stephen Duggan, Borchard edited the papers of a friend and teacher, The Collected Papers of John Bassett Moore (7 vols., 1944).

For the most detailed account of Borchard’s life and work, see Richard H. Kendall, “Edwin M. Borchard and the Defense of Traditional American Neutrality, 1935–41” (Ph.D. diss., Yale Univ., 1964). A more sophisticated analysis of Borchard’s thought is Justus D. Doenecke, “Edwin M. Borchard, John Bassett Moore, and Opposition to American Intervention in World War II,” Journal of Libertarian Studies 6, no. 1 (Winter 1982): 1–34. Information on Borchard can also be found in Wayne S. Cole, America First: The Battle against Intervention (1953) and Roosevelt and the Isolationists (1983); Robert A. Divine, The Illusion of Neutrality (1962); William O. Douglas, Go East, Young Man (1974); Ronald Radosh, Prophets on the Right (1975); and Doenecke, The Literature of Isolationism (1972). Lengthy obituaries are in the New York Times, 23 July 1951; Yale Law Journal 60 (1951): 1071; and American Journal of International Law 45 (1951): 708.