File No. 763.72/1588
The Secretary of State to the Ambassador in Great Britain ( Page )
1343. You are instructed to deliver the following to His Majesty’s Government in reply to your Nos. 17951 and 17982 of March 15:
The Government of the United States has given careful consideration to the subjects treated in the British notes of March 13 and March 15, and to the British order in council of the latter date.3
These communications contain matters of grave importance to neutral nations. They appear to menace their rights of trade and intercourse not only with belligerents but also with one another. They call for frank comment in order that misunderstandings may be avoided. The Government of the United States deems it its duty, therefore, speaking in the sincerest spirit of friendship, to make its sown view and position with regard to them unmistakably clear.
The order in council of the 15th of March would constitute, were its provisions to be actually carried into effect as they stand, a practical assertion of unlimited belligerent rights over neutral commerce within the whole European area, and an almost unqualified denial of the sovereign rights of the nations now at peace.
This Government takes it for granted that there can be no question what those rights are. A nation’s sovereignty over its own ships and citizens under its own flag on the high seas in time of peace is, of course, unlimited and that sovereignty suffers no diminution in time of war, except in so far as the practice and consent of civilized nations has limited it by the recognition of certain now clearly determined rights, which it is conceded may be exercised by nations which are at war.
A belligerent nation has been conceded the right of visit and search, and the right of capture and condemnation, if upon examination a neutral vessel is found to be engaged in unneutral service or to be carrying contraband of war intended for the enemy’s government or armed forces. It has been conceded the right to establish and maintain a blockade of an enemy’s ports and coasts and to capture and condemn any vessel taken in trying to break the blockade. It is even conceded the right to detain and take to its own ports for judicial examination all vessels which it suspects for substantial reasons to be engaged in unneutral or contraband service and to condemn them if the suspicion is sustained. But such rights, long clearly defined both in doctrine and practice, have hitherto been held to be the only permissible exceptions to the principle of universal equality of sovereignty on the high seas as between belligerents and nations not engaged in war.
It is confidently assumed that His Majesty’s Government will not deny that it is a rule sanctioned by general practice that, even though a blockade should exist and the doctrine of contraband as to unblockaded territory be rigidly enforced, innocent shipments may be [Page 153] freely transported to and from the United States through neutral countries to belligerent territory without being subject to the penal ties of contraband traffic or breach of blockade, much less to detention, requisition, or confiscation.
Moreover the rules of the Declaration of Paris of 1856—among them that free, ships make free goods—will hardly at this day be disputed by the signatories of that solemn agreement.
His Majesty’s Government, like the Government of the United State, have often and explicitly held that these rights represent the best usage of warfare in the dealings of belligerents with neutrals at sea. In this connection I desire to direct attention to the opinion of the Chief Justice of the United States in the case of the Peterhoff, which arose out of the Civil War, and to the fact that that opinion was unanimously sustained in the award of the arbitration commission of 1871, to which the case was presented at the request of Great Britain. From that time to the Declaration of London of 1909, adopted with modifications by the order in council of the 23d of October last, these rights have not been seriously questioned by the British Government. And no claim on the part of Great Britain of any justification for interfering with these clear rights of the United States and its citizens as neutrals could be admitted. To admit it would be to assume an attitude of unneutrality toward the present enemies of Great Britain which would be obviously inconsistent with the solemn obligations of this Government in the present circumstances; and for Great Britain to make such a claim would be for her to abandon and set at naught the principles for which she has consistently and earnestly contended in other times and circumstances.
The note of His Majesty’s Principal Secretary of State for Foreign Affairs which accompanies the order in council, and which bears the same date, notifies the Government of the United States of the establishment of a blockade which is, if defined by the terms of the order in council, to include all the coasts and ports of Germany and every port of possible access to enemy territory. But the novel and quite unprecedented feature of that blockade, if we are to assume it to be properly so defined, is that it embraces many neutral ports and coasts, bars access to them, and subjects all neutral ships seeking to approach them to the same suspicion that would attach to them were they bound for the ports of the enemies of Great Britain, and to unusual risks and penalties.
It is manifest that such limitations, risks, and liabilities placed upon the ships of a neutral power on the high seas, beyond the right of visit and search and the right to prevent the shipment of contraband already referred to, are a distinct invasion of the sovereign rights of the nation whose ships, trade, or commerce are interfered with.
The Government of the United States is, of course, not oblivious to the great changes which have occurred in the conditions and means of naval warfare since the rules hitherto governing legal blockade were formulated. It might be ready to admit that the old form of “close” blockade with its cordon of ships in the immediate offing of the blockaded ports is no longer practicable in face of an enemy possessing the means and opportunity to make an effective defense by the use of submarines, mines, and aircraft; but it can hardly be [Page 154] maintained that, whatever form of effective blockade may be made use of, it is impossible to conform at least to the spirit and principles of the established rules of war. If the necessities of the case should seem to render it imperative that the cordon of blockading vessels be extended across the approaches to any neighboring neutral port or country, it would seem clear that it would still be easily practicable to comply with the well-recognized and reasonable prohibition of international law against the blockading of neutral ports by according free admission and exit to all lawful traffic with neutral ports through the blockading cordon. This traffic would of course include all outward-bound traffic from the neutral country and all inward-bound traffic to the neutral country except contraband in transit to the enemy. Such procedure need not conflict in any respect with the rights of the belligerent maintaining the blockade since the right would remain with the blockading vessels to visit and search all ships either entering or leaving the neutral territory which they were in fact, but not of right, investing.
The Government of the United States notes that in the order in council His Majesty’s Government give as their reason for entering upon a course of action, which they are aware is without precedent in modern warfare, the necessity they conceive themselves to have been placed under to retaliate upon their enemies for measures of a similar nature which the latter have announced it their intention to adopt and which they have to some extent adopted; but the Government of the United States, recalling the principles upon which His Majesty’s Government have hitherto been scrupulous to act, interprets this as merely a reason for certain extraordinary activities on the part of His Majesty’s naval forces and not as an excuse for or prelude to any unlawful action. If the course pursued by the present enemies of Great Britain should prove to be in fact tainted by illegality and disregard of the principles of war sanctioned by enlightened nations, it cannot be supposed, and this Government does not for a moment suppose, that His Majesty’s Government would wish the same taint to attach to their own actions or would cite such illegal acts as in any sense or degree a justification for similar practices on their part in so far as they affect neutral rights.
It is thus that the Government of the United States interprets the language of the note of His Majesty’s Principal Secretary of State for Foreign Affairs which accompanies the copy of the order in council which was handed to the Ambassador of the United States near the Government in London and by him transmitted to Washington.
This Government notes with gratification that “wide discretion is afforded to the prize court in dealing with the trade of neutrals in such manner as may in the circumstances be deemed just, and that full provision is made to facilitate claims by persons interested in any goods placed in the custody of the marshal of the prize court under the order”; that “the effect of the order in council is to confer certain powers upon the executive officers of His Majesty’s Government”; and that “the extent to which these powers will be actually exercised and the degree of severity with which the measures of blockade authorized will be put into operation are matters which will [Page 155] depend on the administrative orders issued by the Government and the decisions of the authorities especially charged with the duty of dealing with individual ships and cargoes according to the merits of each case.” This Government further notes with equal satisfaction the declaration of the British Government that “the instructions to be issued by His Majesty’s Government to the fleet and to the customs officials and executive committees concerned will impress upon them the duty of acting with the utmost dispatch consistent with the object in view, and of showing in every case such consideration for neutrals as may be compatible with that object, which is, succinctly stated, to establish a blockade to prevent vessels from carrying goods for or coming from Germany.”
In view of these assurances formally given to this Government, it is confidently expected that the extensive powers conferred by the order in council on the executive officers of the Crown will be restricted by “orders issued by the Government” directing the exercise of their discretionary powers in such a manner as to modify in practical application those provisions of the order in council which, if strictly enforced, would violate neutral rights and interrupt legitimate trade. Relying on the faithful performance of these voluntary assurances by His Majesty’s Government the United States takes it for granted that the approach of American merchantmen to neutral ports situated upon the long line of coast affected by the order in council will not be interfered with when it is known that they do not carry goods which are contraband of war or goods destined to or proceeding from ports within the belligerent territory affected.
The Government of the United States assumes with the greater confidence that His Majesty’s Government will thus adjust their practice to the recognized rules of international law, because it is manifest that the British Government have adopted an extraordinary method of “stopping cargoes destined for or coming from the enemy’s territory,” which, owing to the existence of unusual conditions in modern warfare at sea, it will be difficult to restrict to the limits which have been heretofore required by the law of nations. Though the area of operations is confined to “European waters including the Mediterranean,” so great an area of the high seas is covered and the cordon of ships is so distant from the territory affected that neutral vessels must necessarily pass through the blockading force in order to reach important neutral ports which Great Britain as a belligerent has not the legal right to blockade and which, therefore, it is presumed she has no intention of claiming to blockade. The Scandinavian and Danish ports, for example, are open to American trade. They are also free, so far as the actual enforcement of the order in council is concerned, to carry on trade with German Baltic ports, although it is an essential element of blockade that it bear with equal severity upon all neutrals.
This Government, therefore, infers that the commanders of His Majesty’s ships of war engaged in maintaining the so-called blockade will be instructed to avoid an enforcement of the proposed measures of non-intercourse in such a way as to impose restrictions upon neutral trade more burdensome than those which have been regarded as inevitable when the ports of a belligerent are actually blockaded by the ships of its enemy.
[Page 156]The possibilities of serious interruption of American trade under the order in council are so many, and the methods proposed are so unusual and seem liable to constitute so great an impediment and embarrassment to neutral commerce that the Government of the United States, if the order in council is strictly enforced, apprehends many interferences with its legitimate trade which will impose upon His Majesty’s Government heavy responsibilities for acts of the British authorities clearly subversive of the rights of neutral nations on the high seas. It is, therefore, expected that His Majesty’s Government, having considered these possibilities, will take the steps necessary to avoid them, and, in the event that they should unhappily occur, will be prepared to make full reparation for every act, which under the rules of international law constitutes a violation of neutral rights.
As stated in its communication of October 22, 1914, “This Government will insist that the rights and duties of the United States and its citizens in the present war be defined by the existing rules of international law and the treaties of the United States, irrespective of the provisions of the Declaration of London, and that this Government reserves to itself the right to enter a protest or demand in each case in which those rights and duties so defined are violated, or their free exercise interfered with, by the authorities of the British Government.”
In conclusion you will reiterate to His Majesty’s Government that this statement of the views of the Government of the United States is made in the most friendly spirit, and in accordance with the uniform candor which has characterized the relations of the two Governments in the past, and which has been in large measure the foundation of the peace and amity existing between the two nations without interruption for a century.