Papers Relating to the Foreign Relations of the United States, The Lansing Papers, 1914–1920, Volume I

763.72112/157

The Acting Secretary of State to President Wilson

Washington, October 15, 1914.

Dear Mr. President: Referring to our conversation of last evening in regard to the negotiations relative to the Declaration of London I send you herewith the objections to the Draft Order in Council of the British Government,¹¹ which they propose as a substitute to the Order in Council of August 20th.¹²

The sum total of the objection[s] is that the Order in Council of August 20th is repealed in no particular, but on the contrary is reenacted with changes and additions which make its provisions even more objectionable.

If these objections seem to you to be sound, they should, I think, be telegraphed to Mr. Page in London¹³ as Sir Cecil Spring-Rice today showed me a telegram from Sir Edward Grey¹⁴ asking for our comments on the proposed Order in Council as soon as possible. It would seem best also to give a paraphrase of the telegram to Sir Cecil in order that he may be fully advised of this Government’s views.

Even though the telegram is long, it seems to me advisable that Mr. Page should be supplied with the arguments which will be urged on the British Ambassador here.

I regret to have to trouble you with this matter but in view of Sir Edward Grey’s urgent request for the views of this Government, which is not unreasonable in the circumstances, I felt this Memorandum should be in your hands tonight.

A copy of the Order in Council of August 20, 1914, and of the substitute Order in Council now proposed by the British Government are also inclosed.

Very sincerely yours,

Robert Lansing

[Enclosure]

Draft Telegram From the Acting Secretary of State to the Ambassador in Great Britain (Page)¹³

Objections to the Proposed Order in Council, Forwarded in American Ambassador’s Telegram No. 806 of October 9, 1914¹¹

First. It does not accept the Declaration of London without change, hence this Government is convinced that such modified acceptance would not be satisfactory to other belligerents, who have accepted the Declaration conditionally upon its acceptance by all the belligerent powers.

Second. If all or a part of the belligerents accepted the Declaration of London the proposed modifications and additions to the Declaration, by increasing the restrictions on neutral commerce beyond those imposed by the Declaration or by international law, would not be acceptable to neutral nations including the United States.

The foregoing objections to the proposed Order in Council are general in nature, depending upon the fact that the proposed modifications and additions make unanimous acceptance of the Declaration of London as a code of naval warfare impossible.

As to the provisions of the proposed Order in Council considered in detail this Government makes the following objections:

A. The proposed Order in Council leaves unrepealed Articles 2, 3, 4 and 6 of the Order in Council of August 20th. Of these Articles Numbers 3 and 6 are especially objectionable to this Government. Articles 2 and 4, while less objectionable, are amendments to the Declaration and so prevent its unqualified acceptance.

B. The proposed Order in Council, while it purports to repeal Article 1 of the Order in Council of August 20th, in fact reenacts that Article and extends the lists of contraband set forth by many additions. These additions could have been made under Articles 23 and 25 of the Declaration if it had been adopted without change, hence it was needless to modify the Declaration itself. This objection was made to Article 1 of the Order in Council of August 20th, and applies equally to its reenactment in an amended form.

C. The substitution of Sub-Article B of Article 2 of Section 3 of the proposed Order in Council for Article 5 of the Order in Council of August 20th is, from the standpoint of neutral interests, more objectionable than the repealed Article 5. That Article was intended to preserve the doctrine of “continuous voyage” in relation to conditional contraband. While purporting to abandon the doctrine Sub-Article B not only reenacts it but goes even further than Article 5 in applying it. If “continuous voyage” is eliminated, no ship carrying articles listed as conditional contraband is liable to capture when its cargo is to be discharged in a neutral port even if the ultimate destination of the cargo is the enemy government. By Article 5 of the Order in Council of August 20th a ship destined to a neutral port is liable to seizure if the consignee of the cargo of conditional contraband is an enemy government, its agent or a person under its control. By Sub-Article B, in the proposed Order in Council a ship and cargo are liable to capture, if the goods carried are listed as conditional contraband, even though to be discharged at a neutral port, provided “no consignee in that country of the goods alleged to be conditional contraband is disclosed in the ship’s papers.” In fact the terms of the Sub-Article permit capture of a ship bound for the port of one neutral country, if the cargo is consigned to a person resident in another neutral country. The substitute is manifestly far more obnoxious than the original Article 5.

D. Section Four of the proposed Order in Council introduces a new principle into international law, which imposes upon neutral commerce a restriction without precedent in modern times. An analysis of the provisions of this section shows that, in the discretion of one of His Majesty’s Principal Secretaries of State, a neutral country may be clothed with enemy character and that the legitimate trade of another neutral with such country may be subjected to the rules which are applied to contraband trade with enemy territory as such rules are laid down in Article 3 of the Order in Council of August 20th. In brief this section means that articles, listed as conditional contraband, shipped in a neutral vessel to a neutral country makes the vessel and its cargo liable to seizure if the British authorities are satisfied that supplies or munitions of war are entering enemy territory from the neutral country to a port of which the vessel is bound even though the consignee is within neutral country.

The purpose of this provision seems to be to gain all the rights of a belligerent over neutral commerce with enemy territory without declaring war against the neutral country which is claimed to be a base of supply for the military forces of an enemy. If the British Government seek belligerent rights they must bear the burden of belligerency. They cannot declare a nation to be neutral and treat it as an enemy, and expect other neutral nations to submit to having their commerce subjected to rules which only apply to commerce with a belligerent. If a neutral nation’s trade with a neighboring belligerent constitutes an unneutral act, the remedy is an ultimatum, not a restriction of the trade of an innocent neutral nation with the nation, whose acts are complained of.

Robert Lansing

11. Foreign Relations, 1914, supp., p. 244.
12. Ibid., p. 219.
13. For telegram as sent, see ibid., p. 250.
14. Ante, p. 251.
13. For telegram as sent, see ibid., p. 250.
11. Foreign Relations, 1914, supp., p. 244.