File No. 763.72111/2707
The British Ambassador (Spring Rice) to the Secretary of State
Sir: I beg to acknowledge with thanks your note of the 23d instant with reference to the furnishing of assistance to British subjects who desire to return to England for military service.
You inform me in, reply to my enquiry as to the view taken by your Department of the action taken by this Embassy in the matter that a judicial construction of the same is involved in indictments now pending.
I fully appreciate the hesitancy expressed by the Attorney General in rendering an opinion on the construction of a statute which may shortly come up for judicial review especially as the statute has never been the subject of judicial construction in this particular respect.
The Attorney General is good enough to inform me through you, Sir, that should I believe the facts do not support the charges made in the indictments recently found in San Francisco he would be glad to have my views on the matter and any facts I may care to present. In reply I beg to state that I have not received a copy of the indictment and that I am consequently unable to express any views in regard to the allegations which may be contained in it. The case being pending, I must of course refrain from commenting on it officially, and in conformity with the usual diplomatic practice, I have no doubt that my Government will not advance a formal claim in the matter until the judicial remedy is exhausted.
I do not write under instructions from my Government but I conceive it to be my duty to place before you such facts as are in my possession, as may throw a useful light on the motives which have prompted the British Embassy and British subjects resident in this country in taking steps for assisting British subjects, who are [Page 768] trained British soldiers, in returning to England at the present crisis. It is clearly right and proper that I should do so, for the matter, as you point out, involves a possible breach of the neutrality laws of this country, and a willing or conscious action of this nature would constitute on my part a serious violation of diplomatic propriety.
With all reserve, therefore, as to the legal aspects of the matter and confining myself solely to the diplomatic aspect, I beg leave to communicate to you the following considerations: That foreign reservists resident in this country but not citizens may be recalled to the colours, by the governments of countries where there is compulsory military service is an accepted usage and has been practised during the present and past wars without any objection (as far as is known) from this or any other Government. To alter this accepted practice, sometime after the outbreak of war, would not I presume be in conformity with the laws of neutrality. It appears to me that no distinction can rightly be drawn between the trained men, British subjects resident in the United States, and the reservists of nations which have compulsory military service. Such a distinction would in my opinion create an unfair discrimination against Great Britain and I have every confidence that at any rate in the United States which like Great Britain is not organised for war, such a distinction will not be drawn.
Under these circumstances when the question of assisting trained British soldiers to return to England came before me I took legal advice and informed the British subjects concerned that according to a decision of the United States courts (United States vs. Hertz, etc.): “It is no offense against the neutrality laws of the United States for persons to go abroad singly or collectively to enlist in a foreign army, or to transport persons so going, provided they do not constitute a military expedition and provided that they go voluntarily and without being induced by other persons or without hiring.”
I added that assistance should be given to none but British subjects. Under the British Army regulations an oath as to British allegiance must be taken at the time of enlistment. If a false oath is made a foreign subject or citizen would at once, on demand, obtain his discharge. It would be both improper and useless to pay the passages of other than British subjects. I have ascertained on enquiry that no British officer on the active list is employed in the matter and that no engagement of any kind is asked or given, and that no inducement is offered except the bare passage and subsistence money. As far as I am aware the men who receive this passage are free to enlist or not as they please when they, arrive in England. Many of them have not enlisted, at least at the port of disembarkation. They are under no obligation whatever.
After issuing the circular to consuls, copy of which I communicated to your Department in my note of 7th July,1 I was informed that efforts were being made to entrap British subjects into committing illegal acts, as for instance exacting contracts, offering bounties, or assisting American citizens and that pressure was being used in the press and elsewhere in order to throw prejudice on the action of British subjects. I did not however feel myself justified in preventing [Page 769] British subjects from exercising what appeared to me to be their undoubted rights. I believe my action in the matter does not differ from what would be taken under similar circumstances by the representative of the United States. From my knowledge of this country, derived from an experience of thirty years, I do not believe that in the event of a desperate crisis threatening the existence of the United States, American citizens would be easily deterred from returning from foreign countries, or Americans with means, from assisting their fellow citizens so to return. Nor do I think that the United States Government would refrain from offering its support and encouragement on the ground that compulsory military service does not exist in this country in the sense in which it is enforced elsewhere. In this connection I may be permitted to allude to the measures taken by the United States Government during the Civil War, in the course of which many thousands of recruits were enlisted from Canada without, as far as I know, any opposition on the part of the British Government.
When however I was informed that prosecutions had been instituted against British subjects in San Francisco, I at once communicated with your Department with a view to obtaining if possible an expression as to its view as to the legality of the steps which have been taken. You inform me (and I venture to add that I entirely concur in your view) that the matter being before the courts you can not express an opinion.
Under these circumstances I thought it my duty to cause British subjects to be informed that all steps taken with a view to assisting British trained men to return to England must cease as soon as possible pending an authoritative decision. I have even refused my authorisation to the British Consul in Honolulu, who is in charge of Italian interests, from publishing the usual notification to Italian reservists to join the colours.
But in taking such action I beg to inform you that I do so reserving all rights as to a further communication on the general question and in order to avoid any appearance or suspicion of encouraging British subjects to evade the law.
I venture to add a word of a more personal character. I trust that it will not be suspected in your Department that the British Ambassador or British officials would intentionally violate the laws of the country in which they reside. Had I received any intimation that there was reason to suppose that doubts had arisen as to the legality of the measures taken I would of course at once have taken steps to have them stopped pending an authoritative decision.
I have [etc.]