763.72112/983½

Memorandum by the Counselor for the Department of State (Lansing) on Proposed Reply to British Note of March 15, 1915, and Order in Council 60

In formulating a reply to the British note of March 15th transmitting the Order in Council of the same date, I think that it is important to consider the following:

1.
The general effect on public opinion in this country. Unless the reply contains a declaration of the legal rights of the United States based on the principles of international law, with which the press has made the public more or less familiar, the American people will consider the Government either indifferent to or ignorant of its rights. Furthermore, the declaration must be urged with sufficient vigor to remove any impression that the Government is submitting without objection to violations of such rights.
2
The political effect of a strong declaration of rights in contrast to a general statement based on expediency rather than legality. A general statement, I am afraid, which amounts to a practical acceptance of the right asserted by Great Britain to interrupt commerce to Germany passing through neutral ports, regardless of its contraband character, would invite strong criticism and furnish the opponents of the Administration with a plausible argument as to the weakness of our foreign policy.
3
The benefit of asserting legal rights upon any claims arising from the enforcement of the Order in Council. If the reply of this Government is so worded that it can be construed into an admission that the measures adopted by Great Britain are justified by the conditions and possess, therefore, a degree of legality, it will make the recovery of a claim very difficult. This will also affect public opinion.
4
The necessity of declaring neutral rights as heretofore recognized in order to be able after the war to assert that such rights exist and their legality has not been impaired by any admission of justification for the Order in Council. The United States in the present war is the guardian of neutrality. For the sake of the future it ought to assert firmly the rights of neutrals. I have the impression that Great Britain after the war is over will be glad to recede from certain positions now assumed and admit that the position taken by the United States was legally correct. If this Government does not declare its rights as a neutral, Great Britain will have no opportunity to recede, and the future rights of neutrals will be materially curtailed.
5
The declaration of neutral rights will amount to a reservation rather than cause a relaxation of the enforcement of the Order in Council. While the assertion of legal rights may have no practical effect on the present commercial situation, it will in the future be of [Page 291] extreme value to those who suffer by reason of the Order in Council and to neutrals in general in case of another maritime war.
6.
The avoidance of asserting legal rights in such a way as to force this Government to employ drastic measures to compel their recognition. The idea is to file a caveat, to permit their violation under protest deferring settlement until peace has been restored.

  1. This paper bears the notation: “Handed to Secretary 11:30 am Mch 24/15 RL.”