As I have approached the subject from an entirely different standpoint
from that of the President, who accepts the assertions in the British
note that a blockade has been instituted, I have taken the liberty of
preparing a suggestion for reply based on the ground that the Order in
Council is inconsistent with their statement that a blockade has been
established.
By adopting this position we more or less avoid the vexatious problem of
the effect of modern methods of warfare on the physical maintenance of a
blockade, although leaving the question open for future discussion in
case it becomes necessary. I think that any admission that Articles 3
and 4 of the Order in Council may be in accord with the practice of
blockade would cause considerable criticism from certain quarters, which
is of course to be avoided if possible.
I hesitate to submit this suggestion on account of the President’s
memorandum but believe it to be my duty to do so.
I also enclose for your consideration some preliminary comments which I
prepared a few days ago.54
[Enclosure]
Memorandum by the Counselor for the Department of
State (Lansing) on
Proposed Reply to the British Note of March 15, 1915, and Order
in Council
[Washington,]
March 22, 1915.
Suggestion for Answer
The Government of the United States has considered the note of His
Majesty’s Principal Secretary of State for Foreign Affairs and the
Order in Council promulgated on March 15, 1915, and is constrained
to inform the Government of His Majesty that the provisions of the
Order appear to be an extension of belligerent rights over the
commerce of neutral powers for which there is no precedent in the
record of international relations.
The British note terms the measures instituted by the Order “measures
of blockade,” and also asserts that “His Majesty’s Government have
felt most reluctant at the moment of initiating
a policy of blockade to exact from neutral ships all the
penalties attaching [Page 283] to a
breach of blockade.” From these statements it would seem that the
British Government consider that by the Declaration of March
1st55 and the Order in Council of March 15th
they have instituted a blockade. Nevertheless neither in the
Declaration nor in the Order is the term “blockade” used and no
notice, such as is required by international usage, has been given
this Government that a blockade of specified ports or coasts has
been established.
Furthermore an examination of the Order in Council shows that, while
Articles 1 and 2 may be applied to the case of a blockade, Articles
3 and 4 are unknown to that practice and contrary to the provisions
of the Declaration of London relating to blockade, which by the
Order in Council of October 29, 1914, was, with certain
modifications, proclaimed by His Majesty as a temporary code of
naval warfare during the present war.
The attention of His Majesty’s Government is directed to the
following articles of the Declaration of London, with which Articles
3 and 4 of the Order in Council are in conflict:
Article 1
A blockade must not extend beyond the ports and coasts belonging to
or occupied by the enemy.
Article 18
The blockading forces must not bar access to neutral ports or
coasts.
Article 19
Whatever may be the ulterior destination of a vessel or of her cargo,
she cannot be captured for breach of blockade, if, at the moment,
she is on her way to a non-blockaded port.
The Government of the United States, in view of the assertions of Sir
Edward Grey that the measures are those of blockade and in view of
the fact that Articles 3 and 4 are manifestly inconsistent with the
practice of blockade, is unable to harmonize the two positions which
His Majesty’s Government have taken respectively in the Order in
Council and in their explanatory note.
In addition to the irreconcilable differences of these positions the
preamble of the Order in Council bases the measures adopted upon a
right of retaliation and not upon a recognized belligerent right,
which requires neither explanation nor excuse for its exercise. The
right of a nation to retaliate upon an enemy, when the enemy has
violated the established rules of war, is not contested so long as
the injury is inflicted directly upon the enemy, but when the
retaliation seeks to make neutral nations its agents and at the same
time to [Page 284] deprive those
nations of rights which they are legally entitled to enjoy, the
retaliating power invites the condemnation and protest of the
nations, which it has so grievously injured.
Retaliation of the sort proposed in the Order in Council imposes upon
neutral commerce burdens and losses, which His Majesty’s Government
can not expect the injured parties to endure with patience or in
silence. Hostilities on the high seas conducted with a scrupulous
regard for the generally accepted rules of naval warfare bear hardly
upon neutrals and deprive them of many of the rights which in times
of peace they freely exercise. These invasions of normal rights this
Government accepts without complaint as unavoidable consequences of
a naval war in which it is not a participant; but, when a
belligerent abandons the recognized rules of warfare, and, invoking
the right of retaliation, institutes measures, which are without
sanction in the law or usage of nations, and which impair the rights
of friendly powers, they may justly hold the belligerent responsible
for the consequences.
The Government of the United States is not insensible to the spirit
of solicitude of His Majesty’s Government manifested in their
express desire to lessen the rigors of a strict application of the
provisions of the Order in Council to neutral commerce. This
relaxation, as His Majesty’s Government state, is to be accomplished
through the medium of extensive discretionary powers, with which His
Majesty’s executive and judicial officers are clothed by the
Order.
This Government cannot, however, accept as a gift that which it is
entitled to as a matter of right, nor can it recognize the propriety
of substituting official discretion for conformity to legal right.
Furthermore the power to exercise discretion is no guaranty that it
will be exercised. Thus the discretionary powers granted in no way
modify the illegal standard of rights, which the Order in Council
seeks to impose on neutral nations, and by which, if they submit to
the Order, they must regulate their conduct.
The Government of the United States, in view of the foregoing
considerations, to which it earnestly invites the attention of His
Majesty’s Government, confidently expects that the provisions of the
Order in Council which place illegal restraints upon the commerce
between neutral ports will be so modified as to remove their
objectionable features, and that in the maintenance of a blockade of
German ports and coasts, if a blockade is declared, the British
officers charged with the maintenance will observe strictly the
rules of blockade recognized by civilized nations and refrain from
improper interference with neutral vessels plying between neutral
ports.
In case the practices, which seem to be contemplated by the Order in
Council, are persisted in by His Majesty’s Government despite their
[Page 285] manifest infraction of
neutral rights, the Government of the United States reserves the
right to make further representations to His Majesty’s Government
upon this subject and to hold them responsible for any loss or
damage which citizens of the United States may incur by reason of
any interference on the part of the British authorities with their
trade with the neutral countries of Europe.
In making this communication to His Majesty’s Government, the
Government of the United States does so in that spirit of amity and
good will, which has happily for a century characterized the
relations between the two countries and which it is the sincere
desire of this Government to preserve.
