763.72/1588
Newspaper Text of the British Order in Council of March 11, 1915, With Comments by the Counselor for the Department of State (Lansing)49
London, March 15[, 1915].—The text of Great Britain’s order in council declaring war on German commerce was made public today. The order reads:
“Whereas the German government has issued certain orders which in violation of the usages of war purport to declare that the waters surrounding the United Kingdom are a military area in which all British and allied merchant vessels will be destroyed, irrespective of the safety and the lives of the passengers and the crews, and in which neutral shipping will be exposed to similar danger in view of the uncertainties of naval warfare;
“And whereas in the memorandum accompanying the said orders neutrals are warned against intrusting crews, passengers or goods to British or allied ships;
[It does not appear that a vessel engaged in the trade sought to be interrupted becomes liable to forfeiture in the Prize Court for any act committed in such trade.
The O. in C. applies only to cargoes.
This preamble purports to furnish an excuse for the promulgation of the O. in C.
It comes to this: Because Germany menaces neutral vessels going to Great Britain, Great Britain menaces all neutral trade with Germany. [Page 274] Germany deprives neutrals of rights. Great Britain retaliates by depriving neutrals of other rights. The neutrals are the chief sufferers.
This is a matter between Germany and neutrals. Neutrals can complain but not Great Britain on their behalf, and especially is this so if Great Britain proposes to retaliate by imposing still heavier burdens on neutral commerce.]
“And whereas such attempts on the part of the enemy give to his majesty an unquestionable right of retaliation;
[The measures provided for in the O. in C. are declared to be in retaliation for illegal purposes of Germany.]
“And whereas his majesty has therefore decided to adopt further measures in order to prevent commodities of any kind from reaching or leaving Germany, although such measures will be enforced without risk to neutral ships or to neutral or noncombatant life and in strict observance of the dictates of humanity;
[If this procedure was a blockade it would be a legitimate war measure. It would need no excuse such as is set forth in this preamble. It would not need to be based on an “unquestionable right of retaliation”.
Clearly the measures are not considered to constitute a blockade. Furthermore the formal notice of a blockade has not been given.]
“And whereas the allies of his majesty are associated with him in the steps now to be announced for restricting further the commerce of Germany, his majesty is therefore pleased, by and with the advice of his privy council, to order, and it is hereby ordered, as follows:
[The only basis for the measures, which can legalize them, must be founded on international law so far as they affect neutral commerce. No nation can legislate for neutrals on the high seas. An O. in C. is municipal law. It can impose no new obligations on neutrals or deprive them of their rights.]
“First—No merchant vessel which sailed from her port of departure after March 1, 1915, shall be allowed to proceed on her voyage to any German port. Unless this vessel receives a pass enabling her to proceed to some neutral or allied port to be named in the pass the goods on board any such vessel must be discharged in a British port and placed in custody of the marshal of the prize court. Goods so discharged, if not contraband of war, shall, if not requisitioned for the use of his majesty, be restored by order of the court and upon such terms as the court may in the circumstances deem to be just to the person entitled thereto.
[Vessels clearing for German port after March 1st. How does this affect cargoes contracted for prior to Mch. 1st?
Who issues the pass?
[Page 275]It would appear that the pass is not issued by the Court since the custody of the Court takes place after a pass has been refused.
The right of requisition appears to be due to the fact that the vessel is taken into a British port.
The wide discretion given the Court prevents any standard of neutral rights being recognized.]
“Second—No merchant vessel which sailed from any German port after March 1, 1915, shall be allowed to proceed on her voyage with any goods on board laden at such port. All goods laden at such port must be discharged in a British or allied port. Goods so discharged in a British port shall be placed in the custody of the marshal of the Prize Court, and If not requisitioned for the use of his majesty shall be detained or sold under the direction of the prize court.
[This affects goods purchased by neutrals prior to March 1st and owned by neutrals. Not German subjects but neutrals bear the loss.
This permits the seizure of a neutral vessel and its detention until its cargo is discharged. It does not appear, however, that the vessel can be condemned.
The right of requisition in these circumstances seems to be a primary right unlimited in application to any sort of cargo.]
“The proceeds of the goods so sold shall be paid into the court and dealt with in such a manner as the court may in the circumstances deem to be just, provided that no proceeds of the sale of such goods shall be paid out of the court until the conclusion of peace, except on the application of a proper officer of the crown, unless it be shown that the goods had become neutral property before the issue of this order, and provided also that nothing herein shall prevent the release of neutral property laden at such enemy port on the application of the proper officer of the crown.
[The retention of the proceeds until peace is concluded furnishes the British Government with the use of the funds during the war. It amounts to an enforced loan by neutrals owning cargoes sold.50
If the goods were neutral owned before the 15th of March then what becomes of them? How far does this modifying clause beginning with “unless” apply? Does it mean that the goods will not be requisitioned or sold? Then why should they be discharged in a British port? If the clause applied to the whole proceeding, why then the last proviso?]
“Third—Every merchant vessel which sailed from her port of departure after March 1, 1915, on her way to a port other than a German port, and carrying goods with an enemy destination or which are enemy property may be required to discharge such goods in a British or allied port.
[This section wipes out all distinction between absolute contraband, conditional contraband and non-contraband and makes all articles subject to the rule of absolute contraband and to the rule of “continuous voyage”.]
“Any goods so discharged in a British port shall be placed in the custody of the marshal of the prize court, and unless they are contraband of war shall, if not requisitioned for the use of his majesty, be restored by an order of the court upon such terms as the court may in the circumstances deem to be justified to the person entitled thereto, and provided that this article shall not apply in any case falling within articles 2 or 4 of this order.
[This provision proceeds to restore in a measure the rule of contraband so far as the right of condemnation is concerned, but it makes non-contraband articles subject to requisition although taken by force on the high seas.
This discretionary power conferred upon the court to dispose of neutral owned non-contraband goods is a most objectionable delegation of authority. Instead of giving the owner a right to recover his goods, recovery is left to the whim of court, which can translate “circumstances” as it pleases.]
“Fourth—Every merchant vessel which sailed from a port other than a German port after March 1, 1915, and having on board goods which are of enemy origin or enemy property may be required to discharge such goods in a British or allied port. Goods discharged in a British port shall be placed in the custody of the marshal of the prize court, and if not requisitioned for the use of his majesty shall be detained or sold under the direction of the prize court.
[The same comments apply to Article 4 as those applied to Article 3.]
“The proceeds of the goods so sold shall be paid into the court and be dealt with in such a manner as the court may in the circumstances deem to be just; provided, that no proceeds of the sale of such goods shall be paid out of the court until the conclusion of peace except on the application of a proper officer of the crown, unless it be shown that the goods had become neutral property before the issue of this order, and provided also that nothing herein shall prevent the release of neutral property of enemy origin on application of the proper officer of the crown.
[The rule laid down as to property of “enemy origin” does not bear equally on all neutrals. Neutrals, whose territories border on Germany or Austria are not deprived of trade in articles of “enemy origin”, while neutrals, separated by sea are prohibited such trade. Furthermore a neutral legally owning such articles is denied the right to sell his legal property to another neutral.]
“Fifth—Any person claiming to be interested in or to have any claim in respect of any goods not being contraband of war placed in [Page 277] the custody of the marshal of the prize court under this order or in the proceeds of such goods may forthwith issue a writ in the prize court against the proper officer of the crown, and apply for an order that the goods should be restored to him or that their proceeds should be paid to him or for such other order as the circumstances of the case may require.
[This merely provides a means to compel the court to exercise its arbitrary power. It confers no right of restitution or compensation on the owner.]
“The practice and procedure of the prize court shall, so far as applicable, be followed mutatis mutandis in any proceedings consequential upon this order:
“Sixth—A merchant vessel which has cleared for a neutral port from a British or allied port or which has been allowed to pass as having an ostensible destination to a neutral port and proceeds to an enemy port shall, if captured on any subsequent voyage, be liable to condemnation.
[If this provision was confined to British ports it might be considered a penalty for false clearance. Including allied ports in the Article makes it obnoxious as a violation of International Law. Even the former is objectionable unless the vessel comes voluntarily within British jurisdiction.]
“Seventh—Nothing in this order shall be deemed to affect the liability of any vessel or goods to capture or condemnation independently of this order.
“Eighth—Nothing in this order shall prevent the relaxation of the provisions of this order in respect of the merchant vessels of any country which declares that no commerce intended for or originating in Germany or belonging to German subjects shall enjoy the protection of its flag.”
[No neutral nation can afford to enter into any bargain of this sort. It would be unneutral and highly offensive to the countries at war with Great Britain.]
- Mr. Lansing’s comments are here printed in brackets following quotations from the newspaper text of the Order in Council. For official text of the Order, see ibid., p. 144.↩
- Here the following remark is inserted: “It serves as handle [?] to force neutrals to comply with the suggestions of Gt. Br.—L[ester] H. W[oolsey].”↩