Foreign Relations of the United States Diplomatic Papers, 1940, The British Commonwealth, The Soviet Union, The Near East and Africa, Volume III

841.711/2895: Telegram

The Chargé in the United Kingdom (Johnson) to the Secretary of State

London, January 17, 1940—noon.
[Received January 17—8:40 a.m.]

146. Your 1664, December 22, 9 p.m.⁹⁵ Following note dated January 16 received today from Foreign Office:

“I have the honour to invite reference to your note No. 1730 of the 27th December in which you drew attention to certain specific instances of the removal from British, United States and other neutral ships, and of the examination by the British censorship authorities, of United States mail addressed to neutral countries and of sealed letter mail despatched from the United States. You also stated that your Government admitted the right of His Majesty’s Government to censor private mails originating in or destined for the United Kingdom or private mails which normally pass through the United Kingdom for transmission to their final destination, but that in view of The Hague Convention No. 11,⁹⁶ your Government could not admit the right of the British authorities to interfere with United States mail in United States or other neutral ships on the high seas or to censor mail in ships which have involuntarily entered British ports.

2. His Majesty’s Government in the United Kingdom are happy to note that there is substantial agreement between them and the United States Government as regards the rights of censorship of terminal mails and that the only point of difference seems to lie in the interpretation of The Hague Convention in regard to correspondence in ships which are diverted into British ports.

3. The view of His Majesty’s Government as regards the examination of mail in ships on the high seas or involuntarily entering British ports is that the immunity conferred by Article I of The Hague Convention No. 11, which in any case does not cover postal parcels, is enjoyed only by genuine postal correspondence, and that a belligerent is therefore at liberty to examine mail bags and, if necessary, their contents in order to assure himself that they constitute such correspondence and not articles of a noxious character such as contraband. This view must, in the opinion of His Majesty’s Government, be regarded as established by the practice during the war of 1914–1918, when none of the belligerents accepted the view that Article I of this convention constituted an absolute prohibition of interference with mail bags, and the general right to search for contraband was regarded as covering a full examination of mails for this purpose. Reference to the correspondence between the United States Government and His Majesty’s Government in 1916 shows that at that date the United States admitted in principle the right of the British authorities to examine mail bags with a view to ascertaining whether they contained contraband.⁹⁷

4. It will be appreciated that the letter post as well as the parcel post can be used to convey contraband; and that even though letters may be addressed to a neutral country, their ultimate destination may be Germany. For instance the letter mails may be used to convey securities, cheques or notes or again they may be used to send industrial diamonds and other light contraband. It must be remembered that the limit of size, weight and bulk of letters sent is sufficient to allow the passage of contraband of this nature which may be of the utmost value to the enemy. It was presumably for this reason that the United States Government in their note of the 24th May 1916⁹⁸ stated that ‘the Government of United States is inclined to the opinion that the class of mail matter which includes stocks, bonds, coupons and similar securities is to be regarded as of the same nature as merchandise or other articles of property and subject to the same exercise of belligerent rights. Money orders, cheques, drafts, notes and other negotiable instruments which may pass as the equivalent of money are, it is considered, also to be classed as merchandise.’ It is clear that in the case of merchandise, His Majesty’s Government are entitled to ascertain if it is contraband intended for the enemy or whether it possesses an innocent character, and it is impossible to decide whether a sealed letter does or does not contain such merchandise without opening it and ascertaining what the contents are. It would be difficult to prevent the use of the letter post for the transmission of contraband to Germany, a use which has been made on an extensive scale, without submitting such mail to that very examination to which the United States Government is taking objection.

5. The Allied Governments in their correspondence with the United States Government in 1916 also had occasion to demonstrate the extent to which the mails were being employed for the purpose of conveying contraband articles to Germany. The position in this respect is identical today, and, in this connexion, I have the honour to invite reference to an aide-mémorie dated the 23rd November, 1939,⁹⁹ which was communicated to a member of your staff and in which clear evidence was given of the existence of an organised traffic in contraband on a considerable scale between German sympathisers in the United States and Germany through the mail. An article in a newspaper¹ published in German in the United States, which was handed to him at the same time, showed that an organisation existed in United States territory for the purpose of facilitating this traffic.

6. Quite apart from transmission of contraband the possibility must be taken into account of the use of the letter post by Germans to transmit military intelligence, to promote sabotage and to carry on other hostile acts. It is in accordance with international law for belligerents to prevent intelligence reaching the enemy which might assist them in hostile operations.

7. I may add that in another respect, namely the destruction of mails on board ships sunk by the illegal methods of warfare adopted by Germany, the situation today is identical with that which existed in the war of 1914–1918. Between the 3rd September, 1939 and the 9th January, 1940 the German naval authorities have destroyed without previous warning or visit, in defiance of the rules of war and of obligations freely entered into, the S. S. Yorkshire, the S. S. Dunbar Castle, the S. S. Simon Bolivar and the S. S. Terukuni Maru, all of which are known to have been carrying mails to or from neutral countries, with as little regard for the safety of the neutral correspondence on board as for the lives of the inoffensive passengers and crew. Yet His Majesty’s Government are not aware that any protest regarding this destruction of postal correspondence has been made to the German Government.

8. In contrast to this reckless and indiscriminate destruction of neutral property the examination conducted by His Majesty’s Government of the mails which are under discussion does not involve innocent mail being either confiscated or destroyed. In accordance with the terms of The Hague Convention mail found in ships which have been diverted to British ports is forwarded to its destination as soon as possible after its innocent nature is established. In no case is genuine correspondence from the United States seized or confiscated by His Majesty’s Government.

9. For the above reasons His Majesty’s Government find themselves unable to share the views of the United States Government that their action in examining neutral mail in British or neutral shipping is contrary to their obligations under international law. They are, however, desirous of conducting this examination with as little inconvenience as possible to foreign nations, and you may rest assured that every effort has been and will be made to reduce any delays which may be occasioned by its enforcement. If the United States Government have occasion to bring any specific complaints to the notice of His Majesty’s Government concerning delays alleged to be due to the examination of these mails, His Majesty’s Government will be happy to examine these complaints in as accommodating and friendly a spirit as possible. While the task of examination is rendered heavy as a result, it is believed that arrangements which have been made to deal with this correspondence will ensure that all genuine correspondence will reach its destination in safety and with reasonable despatch.”

Foreign Office assumes that since our note of protest has been published we shall have no objection to eventual release here of the reply.

Johnson

95. Ibid., p. 270.
96. Convention relative to right of capture in naval warfare, signed at the Second International Peace Conference held at The Hague, October 18, 1907, Foreign Relations, 1907, pt. 2, p. 1236.
97. See ibid., 1916, supp., pp. 591 ff.
98. See note of the same date to the French Ambassador and footnote 1, Foreign Relations, 1916, supp., p. 604.
99. Not printed.
1. New Yorker Staatszeitung und Herold, October 4, 1939, not reprinted.